Will Anti-Lapse and Substitute Gifts in West Virginia

At a glance

Requirements one by one

Death and substitute issue

§ 41-3-3 provides that when a devisee or legatee dies before the testator or was dead when the will was made, issue who survive the testator take what that beneficiary would have taken. The section states no family-relationship test for the deceased beneficiary and gives no hour or day survival period for the issue.

The same section treats a gift to two or more people jointly. It says that a deceased joint recipient's share in the circumstances it describes does not automatically go to the other joint recipients; for a devise it passes to the testator's heirs at law, and for a bequest to the testator's personal representative as in intestacy, unless the will provides otherwise. The provision does not separately specify how a named class gift is divided.

Other failed gifts and will terms

Under § 41-3-4, an otherwise failed real-property devise enters a residuary devise, and an otherwise failed personal-property bequest enters a residuary bequest, if the will has the applicable residue. With no applicable residue, the property passes as in intestacy. A failed gift within the residue passes proportionately to the remaining residuary beneficiaries if any remain.

The substitute rule in § 41-3-3 yields when the will makes or requires a different disposition. § 41-3-4 likewise begins with a contrary-intention condition for its failed-gift fallback.

Appointments and trusts

§ 41-3-6 says a devise or bequest may exercise a power of appointment over property it would describe if owned by the testator, subject to contrary will intent and both conditions in § 41-3-6(a)–(b) concerning the power-creating instrument. That section governs exercise of the power; it does not state a separate substitute-taker formula.

§ 44D-1-112 applies will-construction rules to trust terms and property as appropriate. For a qualifying gift from a will to a trustee, § 41-3-8(b) places the property under the trust's governing instrument unless the will says otherwise; § 41-3-8(c) generally lapses that devise or bequest if the trust was revoked or terminated before the testator died.

What trips people up

§ 41-3-3 allows issue to substitute even when the beneficiary was already dead when the will was made. Its joint-recipient sentence must also be read when the gift is shared; it expressly rejects an automatic transfer of the described failed share to the other joint recipients.

Common questions

Must the deceased beneficiary be related to the testator? § 41-3-3 describes a devisee or legatee without adding a kinship condition.

Where does another failed gift go? § 41-3-4 sends real and personal property to the applicable residue if one exists, then provides an intestacy fallback and a separate rule for a failed residuary share.

Statutes and sources

• W. Va. Code §§ 41-3-3, 41-3-4, 41-3-6, 41-3-8 and 44D-1-112. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.