RUOTOLO V. TIETJEN
93 Conn.App. 432 (2006)



Procedure:Residuary beneficiaries appealed decision of the probate court that the antilapse statute did not apply in the case of a predeceased legatee. The Superior Court, judicial district of New Haven, Robaina, J., affirmed. Daughter of deceased legatee appealed.

Facts: Swanson prepared a will that left one-half of the residue of his estate to Brennan, his stepdaughter, "if she survives me." Brennan died seventeen days before Swanson. Connecticut's anti-lapse statute provided that "[w]hen a devisee or legatee, being a child, stepchild, grandchild, brother or sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed." Conn. Gen. Stat. § 45a-441. Smaldone (P), Brennan's daughter, sought to take Brennan's share of the residue. The lower court held that the words "if she survives me" provided for the contingency that Brennan would predecease Swanson. The court held that the anti-lapse statute would not apply.

Issue:Will the anti-lapse statute allow Smaldone (P) to take her mother's share?

Holding: The Appellate Court, Lavery, C.J., held that in a matter of first impression, residuary bequest to testator's step-daughter “if she survives me,” was insufficient to show the that testator intended that the antilapse statute not apply.
Reversed and remanded.

Rule:If a testator wishes to avoid the application of the anti-lapse statute, he or she must either unequivocally express that intent, or provide for an alternate bequest.

Analysis: (Lavery, C.J.) Yes. If a testator wishes to avoid the application of the anti-lapse statute, he or she must either unequivocally express that intent, or provide for an alternate bequest. Words of survivorship alohe are not a provision for the contingency of the death of a beneficiary, and so do not negate the operation of the anti-lapse statute. At common law, when a named beneficiary under a will predeceased the testator, the share of the deceased beneficiary "lapsed." Almost every state has enacted an anti-lapse statute. Although they vary in scope, all such statutes provide that when a particular devisee predeceases the testator, the devise descends to the issue of the predeceased devisee. Anti-lapse statutes do not reverse the common-law rule of lapse. What they do is modify the devolution of lapsed devises by providing a statutory substitute gift in the case of specified relatives.