14-2603. Substitute gifts; class gifts; definitions

A. If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply:

1. Except as provided in paragraph 3 of this subsection, if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants and they take, by representation, the property to which the devisee would have been entitled if the devisee had survived the testator.

2. Except as provided in paragraph 3 of this subsection, if the devise is in the form of a class gift, other than a devise to issue, descendants, heirs of the body, heirs, next of kin, relatives or family or a class described by similar language, a substitute gift is created in the surviving descendants of the deceased devisee. The property to which the devisees would have been entitled if all of them had survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which that person would have been entitled if the deceased devisees had survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee take by representation the share to which the deceased devisee would have been entitled if the deceased devisee had survived the testator. For the purposes of this paragraph, " deceased devisee" means a class member who failed to survive the testator and left one or more surviving descendants.

3. If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph 1 or 2 of this subsection, the substitute gift is superseded by the alternative devise, whether or not an expressly designated devisee of the alternative devise is entitled to take under the will.

B. Unless the language that creates a power of appointment expressly prohibits the substitution of the appointee's descendants for the appointee, a surviving descendant of a deceased appointee can be substituted for the appointee, whether or not the descendant is an object of the power of appointment.

C. For the purposes of section 14-2601, words of survivorship, such as in a devise to an individual " if he survives me" , or in a devise to " my surviving children" , are, in the absence of clear and convincing evidence to the contrary, a sufficient indication of an intent contrary to the application of this section.

D. For the purposes of this section:

1. " Alternative devise" means a devise that is expressly created by the will and under the terms of the will can take effect instead of another devise on the happening of one or more events, including the survival of the testator or the failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent or any other form. A residuary clause may constitute an alternative devise with respect to a nonresiduary devise, whether or not the will specifically provides that, on lapse or failure, the nonresiduary devise or nonresiduary devises in general pass under the residuary clause.

2. " Class member" includes a person who fails to survive the testator but who would have taken under a devise in the form of a class gift if that person had survived the testator.

3. " Devise" includes an alternative devise, a devise in the form of a class gift and an exercise of a power of appointment.

4. " Devisee" includes:

(a) A class member if the devise is in the form of a class gift.

(b) A person or class member who was deceased at the time the testator executed the will as well as a person or class member who was then living but who failed to survive the testator.

(c) An appointee under a power of appointment exercised by the testator's will.

5. " Stepchild" means a child of the surviving, deceased or former spouse of the testator or of the donor of a power of appointment and not of the testator or donor.

6. " Surviving devisee" or " surviving descendant" means a devisee or a descendant who neither predeceased the testator nor is deemed to have predeceased the testator under section 14-2702.

7. " Testator" includes the donee of a power of appointment if the power is exercised in the testator's will.