## Facts

- Nellie G. Tolman executed a will in 1981.
- The will provided that if her husband predeceased her: (1) two granddaughters (Deborah C. Tomlinson and Laurie Onan) would each receive $10,000, and (2) the remainder would pass to Tolman’s daughter, Betty Jo Miller, as residuary beneficiary.
- The $10,000 gifts expressly stated that if the named granddaughter predeceased Tolman, “this gift shall lapse.”
- The residuary gift to Miller contained no comparable lapse language and no alternate residuary beneficiary.
- The will included a general disinheritance/omitted-heir clause leaving $1 to any heir not specifically provided for.
- Miller predeceased Tolman, creating a dispute over distribution of the residuary estate (approximately $1 million).
- Tomlinson petitioned to determine distribution, arguing the residuary gift lapsed and that Miller’s descendants should be excluded by the will’s language.
- The probate court denied the petition and applied California Probate Code § 21110, awarding the residue to Miller’s surviving issue (including Michael J. Jennings and other descendants). Tomlinson appealed.

## Issues

1. Whether the will expressed a “contrary intention” sufficient to prevent application of California Probate Code § 21110 (antilapse) to the residuary gift when the residuary beneficiary predeceased the testator.
2. Whether a general omitted-heir/disinheritance clause, combined with explicit lapse language in other gifts, implied that the residuary gift should lapse rather than pass to the predeceased beneficiary’s issue.

## Decision

- The Court of Appeal affirmed the probate court’s order.
- Probate Code § 21110 applied because Miller was kindred of the testator and died leaving surviving issue.
- The will did not clearly express an intent to defeat the antilapse statute as to the residuary gift.
- The residuary gift did not lapse; it passed to Miller’s issue as substituted transferees.

## Legal Principles

- Under California Probate Code § 21110, if a transferee who is kindred of the transferor fails to survive but leaves surviving issue, the issue take in the transferee’s place unless a contrary intention appears in the instrument.
- A general disinheritance or omitted-heir clause (e.g., leaving a nominal amount to unnamed heirs) does not, without more specific direction, show an intent to bar antilapse substitution when a named beneficiary predeceases the testator.
- A testator’s use of explicit lapse language for some gifts, and omission of similar language for another gift (including a residuary bequest), supports applying antilapse rather than inferring an implied lapse for the omitted gift.
- Courts require clear, instrument-based direction to displace the statutory antilapse rule; speculative inferences about family relationships are insufficient.

## Conclusion

Because the will lacked specific language directing that the residuary devise to the predeceased daughter should fail or be redistributed away from her descendants, California’s antilapse statute governed, and the residue passed to the daughter’s surviving issue.


Estate of Tolman v. Jennings, 181 Cal. App. 4th 1433 (Cal. Ct. App. 2010)