A will makes a devise to "her " nephews who are really her husband's.
May a child of one of the predeceased nephews take under antilapse provisions?
(ref. section 2603) 0438
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Question
I have an estate that I am administering. This elderly lady had one
brother who predeceased her, leaving a daughter. She was married
(her husband predeceased her), and they had no children. In her will
she divides her estate equally between two of "her" nephews which she names
in the will. However, it appears as though these nephews were nephews
from her husband's side of the family. One of the nephews have predeceased
her. Based on MCL 700.2603, it is my understanding the child of this
deceased nephew would receive nothing and that her entire estate would
go to the surviving nephew. Is this correct?
Answer
Under the facts as provided, the surviving nephew would receive the entire
estate. The Estates and Protected Individuals Code's (EPIC) antilapse
provision would not apply to a deceased nephew who was in fact from the
testator’s husband’s side of the family.
MCL 700.2603 provides in relevant part:
(1) If a devisee fails to survive the testator and is
a grandparent, a grandparent's descendant, or a stepchild of either
the testator or the donor of a power of appointment exercised by the testator's
will, the following apply: (emphasis added)
Under EPIC, the scope of antilapse provisions has been expanded to include
stepchildren. However, it would not cover the deceased nephew, since
he is not a descendant of the testator’s grandparent.
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Last Updated: 5-5-03
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