Will Anti-Lapse and Substitute Gifts in New Hampshire

At a glance

Requirements one by one

Who receives the deceased beneficiary's gift

§ 551:12 gives the estate bequeathed or devised to the heirs in the descending line of a legatee or devisee who died before the testator. Those heirs take “in the same manner” the named beneficiary would have taken if alive. The section states no required relationship between the beneficiary and testator, and it does not distinguish death before will execution from death afterward.

The section does not set out a division formula among the descending heirs or separate language for a class gift. Its words must be applied to the actual will and people involved without treating a class-gift result as automatic.

Survival and other property

§ 563:2 deems a person to have predeceased another unless survival by 120 hours is shown by clear and convincing evidence when property devolution depends on that survival. § 563:3 applies a similar rule to a governing-instrument provision about surviving an event. § 563:6(I)–(II) lists exceptions for operative simultaneous-death or common-disaster language and express survival-period terms; the section also contains other stated exceptions.

§ 551:12 passes the deceased beneficiary's bequeathed or devised estate to descending heirs. § 561:1 provides for descent or distribution of estate property not devised or bequeathed, subject to the provisions of that section.

Will terms, appointments, and trusts

§ 551:12 does not state a particular survivorship phrase, alternative-gift priority, or appointment rule. § 563:6 addresses certain express terms that displace its 120-hour survival requirement. A particular will's terms and other applicable law must be read before deciding an alternative disposition.

§ 564-B:1-112(a) applies will-construction rules to trust terms and property as appropriate. Under § 564-B:1-112(b), the settlor's lawful, achievable intent controls trust interpretation. Those provisions do not themselves specify a result for every deceased trust beneficiary.

What trips people up

§ 551:12 says “heirs in the descending line,” rather than restricting the original legatee or devisee to the testator's child or another named family class. It also does not state the precise share each descending heir receives.

Common questions

Does death before the will was signed fall outside the statute? § 551:12 asks whether the legatee or devisee was deceased before the testator; it does not add a later-than-execution condition.

What happens to property not covered by a bequest or devise? § 561:1 provides for its descent or distribution under the intestacy scheme.

Statutes and sources

• N.H. Rev. Stat. Ann. §§ 551:12, 561:1, 563:2, 563:3, 563:6 and 564-B:1-112. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.