Will Anti-Lapse and Substitute Gifts in Hawaii

At a glance

Requirements one by one

Qualifying devisees and descendants

§ 560:2-603(b) protects a devisee who is a grandparent, descendant of a grandparent, or stepchild of the testator or the donor of a power exercised in the will. Its definition of “devisee” in § 560:2-603(a) includes someone already dead when the will was executed. Surviving descendants receive the deceased devisee's share by representation under § 560:2-603(b)(1).

The statute defines “surviving descendant” by reference to § 560:2-702. Under § 560:2-702(a), survival by 120 hours generally must be established by clear and convincing evidence; § 560:2-702(d)(1)–(2) gives exceptions for operative common-disaster wording and express survival-period terms, among other listed exceptions.

For a qualifying class gift, § 560:2-603(b)(2) likewise substitutes descendants by representation. Its listed exclusions include classes described as “issue,” “descendants,” “heirs,” “next of kin,” “relatives,” or “family.”

Failed gifts, alternatives, and appointments

Subject to substitution, § 560:2-604(a) sends a failed nonresiduary devise into the residue; § 560:2-604(b) reallocates a failed multiperson residuary share proportionately. Estate property still not disposed of by will passes by intestate succession under § 560:2-101(a).

§ 560:2-601 makes contrary intention relevant to will-construction rules. § 560:2-603(b)(3) says ordinary phrases such as “if he survives me” and “my surviving children” alone do not establish contrary intent. A qualifying alternative devise supersedes the substitute gift under § 560:2-603(b)(4)(A)–(B). If competing substitutes remain, a younger-generation substitute takes priority under § 560:2-603(c)(2).

The definition in § 560:2-603(a) expressly includes a testamentary exercise of a power of appointment. Under § 560:2-603(b)(5), an appointee's surviving descendant may substitute even if not an object of the power, unless the creating language expressly excludes that substitution.

Trusts and beneficiary designations

§ 560:2-706(b) separately addresses deceased beneficiaries of qualifying life-insurance, retirement-plan, and transfer-on-death designations. Its § 560:2-706(f) excludes payable-on-death accounts at financial institutions and points to § 560:6-110 instead.

§ 560:2-707(b) separately addresses future interests under a trust executed after January 1, 1997, using the interest's distribution date and surviving descendants who take by representation under § 560:2-707(b)(1). For a revocable living trust that ends at the settlor's death and distributes all assets outright, § 560:2-707(f) instead directs use of the will-lapse rules in §§ 560:2-603 and 560:2-604.

What trips people up

The will rule's relationship test extends to a stepchild and, for an exercised power, to a qualifying relation of the donor. Trust future-interest and beneficiary-designation rules sit in separate sections, with their own triggering events and boundaries.

Common questions

Does “my surviving children” automatically defeat substitution? No. § 560:2-603(b)(3) says those words alone are insufficient without additional evidence.

Can an appointee's descendant substitute? Yes, under § 560:2-603(b)(5) when its conditions are met, unless the power's creating language expressly excludes that substitution.

Statutes and sources

• Haw. Rev. Stat. §§ 560:2-101, 560:2-601, 560:2-603, 560:2-604, 560:2-702, 560:2-706 and 560:2-707. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.