A. As used in 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 survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent or any other form. A residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause;

(2) "class member" includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had the class member survived the testator;

(3) "descendant of a grandparent", as used in Subsection B of this section, means an individual who qualifies as a descendant of a grandparent of the testator or of the donor of a power of appointment pursuant to:

(a) rules of construction applicable to a class gift created in the testator's will if the devise or exercise of the power is in the form of a class gift; or

(b) rules for intestate succession if the devise or exercise of the power is not in the form of a class gift;

(4) "descendants", as used in the phrase "surviving descendants" of a deceased devisee or class member in Paragraphs (1) and (2) of Subsection B of this section, means the descendants of a deceased devisee or class member who would take under a class gift created in the testator's will;

(5) "devise" includes an alternative devise, a devise in the form of a class gift and an exercise of a power of appointment;

(6) "devisee" includes:

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

(b) an individual or class member who was deceased at the time the testator executed the testator's will as well as an individual or class member who was then living but who failed to survive the testator; and

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

(7) "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;

(8) "surviving", as used in the phrase "surviving devisees" or "surviving descendants", means devisees or descendants who neither predeceased the testator nor are deemed to have predeceased the testator pursuant to the provisions of Section 45-2-702 NMSA 1978; and

(9) "testator" includes the donee of a power of appointment if the power is exercised in the testator's will.

B. 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 (4) 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. They take by representation the property to which the devisee would have been entitled had the devisee survived the testator;

(2) except as provided in Paragraph (4) 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 language of similar import, a substitute gift is created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which the surviving devisee would have been entitled had the deceased devisees 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 had the deceased devisee 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) for the purposes of Section 45-2-601 NMSA 1978, words of survivorship, such as in a devise to an individual "if he survives me" or in a devise to "my surviving children" are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section;

(4) 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 if:

(a) the alternative devise is in the form of a class gift and one or more members of the class is entitled to take under the will; or

(b) the alternative devise is not in the form of a class gift and the expressly designated devisee of the alternative devise is entitled to take under the will; and

(5) unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee pursuant to the provisions of this section whether or not the descendant is an object of the power.

C. If, pursuant to the provisions of Subsection B of this section, substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:

(1) except as provided in Paragraph (2) of this subsection, the devised property passes under the primary substitute gift;

(2) if there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift; and

(3) as used in this subsection:

(a) "primary devise" means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator;

(b) "primary substitute gift" means the substitute gift created with respect to the primary devise;

(c) "younger-generation devise" means a devise that: 1) is to a descendant of a devisee of the primary devise; 2) is an alternative devise with respect to the primary devise; 3) is a devise for which a substitute gift is created; and 4) would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise; and

(d) "younger-generation substitute gift" means the substitute gift created with respect to the younger-generation devise.

History: 1953 Comp., § 32A-2-603, enacted by Laws 1975, ch. 257, § 2-603; repealed and reenacted by Laws 1993, ch. 174, § 42; 1995, ch. 210, § 14; 2011, ch. 124, § 24.

Official comments. — See Commissioners on Uniform State Law official comment to 2-603 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 42 repealed 45-2-603 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-603, relating to rules of construction and intention, and enacted a new section, effective July 1, 1993.

The 2011 amendment, effective January 1, 2012, defined "descendant of a grandparent", "descendants", and "surviving", and in Subsection B(4), provided the conditions under which a substitute gift is superseded by an alternative devise.

The 1995 amendment, effective July 1, 1995, substituted "surviving descendants of any deceased devisee" for "deceased devisee or devisee's surviving descendants" at the end of the first sentence in Paragraph B(2).

Section inapplicable where bank is devisee. — Where a bank is the devisee and named siblings of the decedent are trust beneficiaries, the anti-lapse provisions of this section are inapplicable to the decedent's testamentary dispositions. Portales Nat'l Bank v. Bellin, 1982-NMCA-092, 98 N.M. 113, 645 P.2d 986 (decided under former law).

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 80 Am. Jur. 2d Wills §§ 1671, 1679, 1681.

Time of ascertainment of membership with respect to devise or bequest to class which takes effect at testator's death, 6 A.L.R.2d 1342.

Validity and construction of limitation over to another in event that original beneficiary should die before payment or receipt of devise or legacy, 59 A.L.R.3d 1043.

96 C.J.S. Wills §§ 719, 729, 737, 921, 946, 1197.