A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific scenario? If so, in setting forth this presumption, should lawmakers favor certain persons over others? One way of examining these broad questions of implementing intent is by delving into the issues when they are presented in the context of lapse and anti-lapse.
Eloisa C. Rodriguez-Dod,
"I'm Not Quite Dead Yet!": Rethinking the Anti-Lapse Redistribution of a Dead Beneficiary's Gift,
61 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol61/iss4/7