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ANTI-LAPSE MEANS ANTI-LAPSE

By Fred Franke

Law Office of Frederick R. Franke, Jr. LLC

            A recent Court of Special Appeals case held that the anti-lapse statute means what it says.  The case was not reported, perhaps because it broke no new ground. What was remarkable about the case, however, was that the appellant's lawyer was slammed by the court for failing to disclose the controlling legal authority to the court.  This is a rookie mistake that undercuts a lawyer's credibility with the court; it is unethical, and it is a tactic doomed to fail. In Re Estate of Hartle, 2016 WL 3185115 (June 2016) involved a bequest of the residuary estate: one-third to A, one-third to B, and one-third to C.  Both A and B predeceased the decedent.  The appellant, C, was the surviving one-third legatee and believed that he was entitled to the entire estate.  The will lacked any language purporting to impose survivorship.  Appellant's claim was that the anti-lapse statute (Est. & Trusts § 4-403) only applies to avoid a bequest slipping into intestacy because there are no other named takers. The Orphans' Court and the Court of Special Appeals pointed to Est. & Trust § 4-403 to hold that the residue should be still distributed in thirds; with each third for the predeceased legatee going to his or her heirs.  Prior to the establishment of the anti-lapse statute in Maryland, common law would have had bequests to predeceased legatees lapse or fail. The common law rule was reversed by the Acts of 1810. The anti-lapse statute transfers such devises to the legatees named in the deceased legatee's will, or if the deceased legatee died intestate, to his or her heirs at law.    Consequently, unless a will imposes a requirement of survivorship, a legacy to a predeceased legatee passes to those persons then living who would be entitled to take as distributees of that legatee.  The statute also provides that bequest falling within the scope of Est. & Trusts § 4-403 goes directly to the distributees of the deceased legatee and is not exposed to the creditors of the deceased legatee. The Court of Special Appeals rested its interpretation of the anti-lapse statute on two recent cases:  Kelly v. Duvall, 441 Md. 275 (2015) and Roe v. Roe, 124 Md.App. 89 (1998).  Neither of these cases was referenced by appellant in his brief. Importantly, the Court notes:  "Appellant failed to distinguish Roe and Kelly in his brief.  Indeed, appellant never even mentioned Roe or Kelly.  We find disturbing the fact that appellant's counsel did not cite to the leading, in our view controlling, cases on the issue presented in the instant appeal.  See Md. Lawyers' Rules of Prof'l Conduct R. 3.3(a)(3) ('A lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing client.')."  In re Estate of Hartle, 2016 WL 3185115, n.4 (June 2016). A lawyer, of course, may push the limits of settled law and, indeed, call for its reversal.  The common law is an organic process.  What a lawyer may not do is pretend that the settled law does not exist.  Caveat Actor.

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