(1) Definitions. As used
in this section, unless the context otherwise requires:
(a) Alternative devise means a devise that is expressly created by the will
and, under the terms of the will, can take effect instead of another devise on the
happening of one or more events, including survival of the testator or failure to
survive the testator, whether an event is expressed in condition-precedent,
condition-subsequent, or any other form. A residuary clause constitutes an
alternative devise with respect to a nonresiduary devise only if the will specifically
provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary
devises in general, pass under the residuary clause.
(b) Class member includes an individual who fails to survive the testator
but who would have taken under a devise in the form of a class gift had he or she
survived the testator.
(c) Devise includes an alternative devise, a devise in the form of a class
gift, and an exercise of a power of appointment.
(d) Devisee includes (i) a class member if the devise is in the form of a class
gift, (ii) the beneficiary of a trust but not the trustee, (iii) an individual or class
member who was deceased at the time the testator executed his or her will as well
as an individual or class member who was then living but who failed to survive the
testator, and (iv) an appointee under a power of appointment exercised by the
testator's will.
(e) (Reserved)
(f) Surviving devisee or surviving descendant means a devisee or a
descendant who neither predeceased the testator nor is deemed to have
predeceased the testator under section 15-11-702.
(g) Testator includes the donee of a power of appointment if the power is
exercised in the testator's will.
(2) Substitute gift. If a devisee fails to survive the testator and is a
grandparent or a descendant of a grandparent of either the testator or the donor of
a power of appointment exercised by the testator's will, the following apply:
(a) Except as provided in paragraph (d) of this subsection (2), if the devise is
not in the form of a class gift and the deceased devisee leaves surviving
descendants, a substitute gift is created in the devisee's surviving descendants.
They take per capita at each generation the property to which the devisee would
have been entitled had the devisee survived the testator.
(b) Except as provided in paragraph (d) of this subsection (2), if the devise is
in the form of a class gift, other than a devise to issue, descendants, heirs of
the body, heirs, next of kin, relatives, or family, or a class described by
language of similar import, a substitute gift is created in the deceased devisee's or
devisees' surviving descendants. The property to which the devisees would have
been entitled had all of them survived the testator passes to the surviving devisees
and the surviving descendants of the deceased devisees. Each surviving devisee
takes the share to which he or she would have been entitled had the deceased
devisees survived the testator. Each deceased devisee's surviving descendants who
are substituted for the deceased devisee takes per capita at each generation the
share to which the deceased devisee would have been entitled had the deceased
devisee survived the testator. For the purposes of this paragraph (b), deceased
devisee means a class member who failed to survive the testator and left one or
more surviving descendants.
(c) For purposes of this part 6, words of survivorship, such as in a devise to
an individual if he survives me or in a devise to my surviving children, are not, in
the absence of additional evidence, a sufficient indication of an intent contrary to
the application of this section. The use of language such as and if he does not
survive me the gift shall lapse or to A and not to A's descendants shall be
sufficient indication of an intent contrary to the application of this section.
(d) If the will creates an alternative devise with respect to a devise for which
a substitute gift is created by paragraph (a) or (b) of this subsection (2), the
substitute gift is superseded by the alternative devise only if an expressly
designated devisee of the alternative devise is entitled to take under the will.
(e) Unless the language creating a power of appointment expressly excludes
the substitution of the descendants of an appointee for the appointee, a surviving
descendant of a deceased appointee of a power of appointment can be substituted
for the appointee under this section, whether or not the descendant is an object of
the power.
(3) Dispositions under separate writing. The provisions of this section shall
not apply to dispositions of tangible personal property made under section 15-11-513.
(4) More than one substitute gift; which one takes. If, under subsection (2)
of this section, substitute gifts are created and not superseded with respect to
more than one devise and the devises are alternative devises, one to the other, the
determination of which of the substitute gifts takes effect is resolved as follows:
(a) Except as provided in paragraph (b) of this subsection (4), the devised
property passes under the primary substitute gift.
(b) If there is a younger-generation devise, the devised property passes
under the younger-generation substitute gift and not under the primary substitute
gift.
(c) In this subsection (4):
(I) Primary devise means the devise that would have taken effect had all
the deceased devisees of the alternative devises who left surviving descendants
survived the testator.
(II) Primary substitute gift means the substitute gift created with respect
to the primary devise.
(III) Younger-generation devise means a devise that:
(A) Is to a descendant of a devisee of the primary devise;
(B) Is an alternative devise with respect to the primary devise;
(C) Is a devise for which a substitute gift is created; and
(D) Would have taken effect had all the deceased devisees who left surviving
descendants survived the testator except the deceased devisee or devisees of the
primary devise.
(IV) Younger-generation substitute gift means the substitute gift created
with respect to the younger-generation devise.