Will Anti-Lapse and Substitute Gifts in North Dakota

At a glance

Requirements one by one

Covered will beneficiaries and issue

§ 30.1-09-05 covers a devisee who is the testator's grandparent or a lineal descendant of a grandparent. The devisee may have died before execution, failed to survive the testator, or been treated as predeceased. A person who would have taken as a class member also counts, regardless of whether the death occurred before or after execution.

The issue must survive the testator by 120 hours. If all are in the same degree of kinship to the deceased devisee, they take equally; if their degrees differ, more remote issue take by representation (§ 30.1-09-05). The general survival provision in § 30.1-09.1-02 also has express exceptions, including operative simultaneous-death terms or a different period stated by the governing instrument.

Failed gifts and will terms

§ 30.1-09-06 sends a failed nonresiduary devise into the residue, except where § 30.1-09-05 supplies issue. If a residue is devised to two or more people, a failed share passes to the other residuary devisees, proportionally if several remain. § 30.1-09-03 makes the testator's expressed intention controlling and applies the construction rules unless the will indicates a contrary intention.

§ 30.1-09-10 says a general residuary clause alone does not exercise a power of appointment; the will must refer specifically to the power or otherwise indicate an intention to include the property subject to it. The anti-lapse section itself does not give a separate formula for a deceased appointee.

Trusts and other designations

§ 30.1-09.1-07 gives future interests under a trust their own substitute-gift rule. It tests survival at the distribution date, can substitute a deceased beneficiary's surviving descendants by representation, and gives qualifying alternative interests priority. Its definition includes future interests created through an appointment to a trust. § 59-09-12 applies will and other governing-instrument construction rules to trusts as appropriate.

§ 30.1-09.1-06 separately governs specified life-insurance, retirement-plan, payable-on-death and transfer-on-death beneficiary designations. That provision has its own protected relationships, class-gift, and alternative-designation conditions; a will devise under § 30.1-09-05 does not itself settle those designations.

What trips people up

The will rule's equal-degree / representation formula (§ 30.1-09-05) differs from simply dividing the gift equally among every living descendant. For a trust future interest, the relevant survival event may be a later distribution date under § 30.1-09.1-07.

Common questions

Does a class member who died before the will was signed count? Yes. § 30.1-09-05 expressly includes a person who would have taken under the class gift had that person survived.

Can a failed residuary share pass to another residuary beneficiary? Yes, when the residue was devised to at least two people; § 30.1-09-06 then reallocates the failed share to the others.

Does a general gift of everything exercise a power of appointment? § 30.1-09-10 says no unless the will specifically refers to the power or otherwise indicates intent to include the property subject to it.

Statutes and sources

• N.D. Cent. Code §§ 30.1-09-03, -05, -06, -10, 30.1-09.1-02, -06, -07, and 59-09-12. Verbatim official excerpts, section links, and access dates appear in the source fields above.