Will Anti-Lapse and Substitute Gifts in Montana

At a glance

Requirements one by one

Covered will gifts and beneficiaries

§ 72-2-613(1)(e)–(f) includes a class gift, an alternative devise, and an appointment exercised by will. It also includes a named person who was already dead when the will was signed. The protected devisee must be a grandparent, a descendant of a grandparent, or a stepchild of the testator or of the donor of a power exercised by the will (§ 72-2-613(2)). The section defines stepchild to include a child of a surviving, deceased, or former spouse who is not also the testator's or donor's child.

Surviving descendants and class shares

For an individual gift, § 72-2-613(2)(a) gives the deceased devisee's share to surviving descendants by representation. For a class gift, subsection (2)(b) preserves each surviving class member's share and gives a deceased member's share to that member's surviving descendants by representation. It excludes classes described as “issue,” “descendants,” “heirs,” “next of kin,” “relatives,” “family,” or similar terms.

§ 72-2-613(1)(h) ties survival to § 72-2-712. Under § 72-2-712(1), a person not shown by clear and convincing evidence to have survived an event by 120 hours is generally deemed to have predeceased it. Subsection (4) lists exceptions, including operative simultaneous-death language and an express different survival period.

Failed gifts, alternatives, and trusts

If substitution does not apply, § 72-2-614(1) puts a failed nonresiduary devise into the residue. Under subsection (2), a failed share of a residue left to multiple devisees passes proportionally to the other residuary devisees.

§ 72-2-613(2)(d) gives priority to an alternative devise whose designated beneficiary or qualifying class member can take. If multiple alternative substitute gifts survive, subsection (3) chooses the primary substitute gift, except where its specified younger-generation gift has priority. Subsection (2)(e) allows descendants of a deceased appointee to substitute even if they are not objects of the power, unless the power expressly excludes substitution.

§ 72-38-112 applies will-construction rules to trust terms and property as appropriate. That direction calls for reading the trust's terms; § 72-2-613 itself is framed as a rule for a will and an appointment exercised by will.

What trips people up

The words “if the individual survives me” or “my surviving children” do not, without more evidence, defeat § 72-2-613's substitute gift (§ 72-2-613(2)(c)). Section 72-2-611 makes the will-construction rules subject to a finding of contrary intent.

Common questions

Does a gift to a stepchild qualify? Yes, if the stepchild meets § 72-2-613(1)(g)'s definition and the other requirements, including surviving descendants, are met.

What if the named beneficiary died before the will was signed? Section 72-2-613(1)(f)(ii) expressly includes a person already deceased when the testator executed the will.

Can the substitute descendant take under an exercised power of appointment? Section 72-2-613(2)(e) permits that even when the descendant is not an object of the power, unless the power's language expressly excludes substitution.

Statutes and sources

• Mont. Code Ann. §§ 72-2-611, 72-2-613, 72-2-614, 72-2-712 and 72-38-112. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.