ARS 14-2604 Anti-Lapse Statutes
In In re Estate of Jackson, 106 Ariz. 82, 471 P.2d 278 (1970), the testator died with a will that left everything to her husband. Id. at 83, 471 P.2d at 279.
In the event that her husband predeceased her, she directed her estate to be divided into two equal shares, with one share going to her husband's daughter and one share going to her brother. Id.
The testator's husband predeceased her, as did her brother. Id.
The court had to decide whether a lapsed portion of a residuary bequest passed to the surviving residuary beneficiary or passed through intestacy. Id.
The court noted that the majority rule passes the lapsed portion of the residuary to the testator's next of kin as intestate property. Id.
One of the arguments that the Jackson court addressed (and rejected) was that a testator's intent to leave a specified portion to a residuary beneficiary who cannot receive the gift would be defeated by allowing the lapsed residue to pass to the surviving residuary beneficiary. Id. at 84, 471 P.2d at 278.
In rejecting this argument, the court cited a number of cases that criticize the majority rule because "'of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of the general residuary legatees, that his next of kin shall not participate in the distribution at all.'" Id.
Jackson therefore stands for the proposition that the actual intent of the testator must be given effect, and the presumption against intestacy cannot be served by taking a lapsed legacy out of the residue for the benefit of those who would inherit in the absence of a will. Id. ("It is probably more in accord with the testator's intent that a lapsed residuary bequest remain in the residue and pass to the surviving residuary legatees.").
This holding was later codified into A.R.S. 14-2604. A.R.S. 14-2604(B) (2005) ("Except as provided in 14-2603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.").
A.R.S. 14-2604 is generally known as one of the anti-lapse statutes.