Wills – Antilapse Statute


Shirley v. Dawkins, etc., [Ms. 1200706, June 24, 2022] __ So. 3d __ (Ala. 2022). The Court (Wise, J.; Parker, C.J., and Shaw, Bryan, Mendheim, and Stewart, JJ., concur; Bolin, J., concurs specially, which Sellers, J., joins; Mitchell, J., concurs specially) reverses the Shelby Probate Court’s judgment declaring that § 43-8-224, Ala. Code 1975, the antilapse statute, did not apply and that accordingly Deborah Diane Dawkins was the sole beneficiary under the terms of the Will of her father Donald Wayne Shirley, Sr. (“Shirley”).

The antilapse statute, § 43-8-224, Ala. Code 1975, provides:

“If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by five days take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.”

The relevant portions of the Will provided that in the event Shirley’s wife predeceased him that “‘I hereby give, devise, and bequeath to my beloved children, Donald Wayne Shirley, Jr. and Deborah Diane Shirley Dawkins, in equal shares, to share and share alike,’” and Article Five of the will provided “THE OMMISION [sic] on my part to devise and bequeath any part of my Estate to any of my relatives and to anyone other than those heretofore named hereinabove is purposely made by me.” Ms. **2-3.

Shirley’s wife predeceased him and he died on August 7, 2020. Shirley’s son, Donald, died the previous day, August 6, 2020. The Court concludes that the antilapse statute applied so that Donald, Jr.’s son, Andrew, was entitled to Donald, Jr.’s share, because Article 5 of Shirley’s Will was not sufficient to render the antilapse statute inapplicable. The Court explains

‘The expression of an intention to exclude from participation persons not mentioned in the will continues to be held insufficient in itself to exclude such persons from taking by virtue of the application of the antilapse statute.’. See also Erich Tucker Kimbrough, Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection, 36 Wm. & Mary L. Rev. 269, 288 (Oct. 1994)(‘Accordingly, the disinheritance does not mean that the testator intends that the disinherited individual not take if the ancestor has died. Furthermore, applying an antilapse statute to allow a disinherited heir to take a lapsed devise makes sense when viewed in light of the rule that disinherited heirs cannot be prevented from taking by intestacy.’).”

Ms. *14, quoting Norwood, 298 So. 3d at 1055.

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