Legal Definitions - failed devise

A failed devise (also known as a lapsed devise) occurs when a gift of real property, such as land or a house, specified in a will cannot be successfully transferred to the intended recipient. This typically happens because the person or entity designated to receive the property (the "devisee") is no longer alive or legally able to accept the gift at the time the person who made the will (the "testator") dies. When a devise fails, the property usually becomes part of the testator's residuary estate, meaning it will be distributed according to the will's general provisions for remaining assets, or if there are none, according to state intestacy laws.

Here are some examples illustrating a failed devise:

• Example 1: Individual Devisee Predeceases Testator

  Scenario: Maria's will states, "I devise my mountain cabin to my dear friend, Robert." Tragically, Robert passes away five years before Maria dies.

  Explanation: Because Robert, the intended recipient of the mountain cabin, died before Maria, the gift of the cabin (the devise) cannot be completed. It has "failed" or "lapsed." The mountain cabin would then typically become part of Maria's remaining estate to be distributed to her other heirs or beneficiaries as specified in her will, or by state law if her will doesn't cover this contingency.

• Example 2: Organizational Devisee Ceases to Exist

  Scenario: David's will includes the provision, "I devise my commercial building to the 'Downtown Arts Collective,' a local non-profit organization dedicated to promoting community art." Unbeknownst to David, the Downtown Arts Collective officially dissolved and ceased all operations three years before his death due to a lack of funding.

  Explanation: The Downtown Arts Collective, the intended recipient of the commercial building, no longer exists as a legal entity when David dies. Therefore, the devise of the building "fails." The commercial building would then be treated as part of David's residuary estate, distributed according to other provisions in his will or state law.

• Example 3: Devisee Disqualified by Law

  Scenario: Eleanor's will states, "I devise my entire farm property to my son, Michael." However, Michael is later convicted of intentionally causing Eleanor's death.

  Explanation: In many jurisdictions, a person who unlawfully causes the death of another is legally prohibited from inheriting from the deceased (often referred to as a "slayer statute"). Even though Eleanor's will specifically named Michael, his legal disqualification means he is unable to receive the property. Consequently, the devise to Michael "fails," and the farm property would be distributed as part of Eleanor's residuary estate.