## Facts

- John N. Swanson executed a will on March 1, 1990, giving one-half of the residuary estate to his stepdaughter, Hazel Brennan, “if she survives me.”
- Brennan died January 2, 2001, seventeen days before Swanson’s death.
- Brennan’s daughter, Kathleen Smaldone, survived Swanson and was Brennan’s “issue” and also a residuary legatee under the will.
- The will was admitted to probate on February 9, 2001.
- The Probate Court concluded Connecticut’s testamentary antilapse statute, Conn. Gen. Stat. § 45a-441, was inoperative because of the survivorship condition, causing Brennan’s residuary share to lapse and pass to Swanson’s intestate estate for the benefit of heirs-at-law, including Fred and Charlene Ruotolo.
- On de novo appeal, the Superior Court affirmed the Probate Court.
- Smaldone appealed; the Appellate Court reversed, holding the antilapse statute applied.
- The Connecticut Supreme Court granted certification on a limited statutory-interpretation issue and affirmed the Appellate Court.

## Issues

1. Whether a will’s survivorship phrase (“if she survives me”), without an alternative disposition or express direction, is a “provision ... in the will for such contingency” that prevents application of Conn. Gen. Stat. § 45a-441 when the named stepchild predeceases the testator.
2. If § 45a-441 applies, whether the predeceased stepchild’s issue takes the residuary share that would otherwise lapse.

## Decision

- The Connecticut Supreme Court affirmed the Appellate Court’s judgment.
- The Court held that words of survivorship, standing alone, do not constitute a “provision ... for such contingency” within the meaning of § 45a-441.
- Because Brennan was a stepchild within the statute’s protected class and the will did not otherwise provide for her predeceasing the testator, § 45a-441 operated to pass Brennan’s residuary share to her issue, Smaldone, rather than to the intestate estate.

## Legal Principles

- Connecticut’s antilapse statute, Conn. Gen. Stat. § 45a-441, applies when a named devisee or legatee who is a child, stepchild, grandchild, sibling, or similarly covered relative predeceases the testator and the will makes no provision for that contingency; the issue of the predeceased beneficiary takes the gift.
- Boilerplate survivorship language conditioning a gift on the beneficiary surviving the testator, without more, is insufficient to show that the will made a provision for the beneficiary’s predeceasing the testator.
- To prevent operation of § 45a-441, a will must more clearly address the contingency of the beneficiary’s prior death, such as by an express statement that the gift lapses or by a specific substitute disposition.
- Antilapse statutes are remedial and are construed to avoid unintended disinheritance of a predeceased beneficiary’s issue absent clear contrary testamentary direction.

## Conclusion

The Connecticut Supreme Court held that a survivorship condition alone does not defeat the antilapse statute, and therefore the residuary share left to a stepchild who predeceased the testator passed to the stepchild’s issue rather than lapsing into the intestate estate.


Ruotolo v. Tietjen, 281 Conn. 483, 916 A.2d 1 (2007)