The difference between a class devise and a specific devise is the way the gift is treated if one of the beneficiaries dies before the testator. When a member of the class predeceases the testator, his share lapses in favor of the surviving class members. If the devise is not a class gift but a specific gift and one of the beneficiaries predeceases the testator, his gift does not lapse but is passed on to his heirs.
A devise constitutes a class gift when it grants property to a group of persons bearing a certain relationship to the testator or to each other. The persons included in the group satisfy this requirement when they can be designated by the same general name such as children, nephews, brothers or sisters. Such a gift must be to a class uncertain in number at the time of the gift. This requirement of uncertainty can be satisfied by the possibility that the number in the class may increase or decrease in the future. A devise to specific persons such as “my sisters, Jane and Joan” is not a class gift but a specific gift to individuals.
An example of a class gift: the Testator devises his property to “my sisters.” He has five sisters but two of them predecease him. The two who predecease him have children. The testator’s estate is divided into three parts and given to the three surviving sisters. The children of the two sisters who predeceased the testator get nothing.
An example of a specific gift: the Testator devises his property to his five sisters by name. Two sisters who have children predecease the testator. The estate is divided into five parts with the children of the two deceased sisters getting their parents share.
Pearls of wisdom: In order to avoid a class gift, name the persons who you want to inherit your estate. Don’t use terms such as “children,” “grandchildren,” “brothers,” nieces,” etc. unless you have specifically named them.
Every person’s situation is different and requires an attorney to review the situation personally with you.
