(a) Definitions. In this section:
“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.
“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.
“Devise” includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment.
“Devisee” includes:
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Terms Used In Hawaii Revised Statutes 560:2-603
- Descendent: One who is directly descended from another such as a child, grandchild, or great grandchild.
- Devise: To gift property by will.
- Donee: The recipient of a gift.
- Donor: The person who makes a gift.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Intestate: Dying without leaving a will.
- Testator: A male person who leaves a will at death.
“Stepchild” means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of appointment, and not of the testator or donor.
“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 § 560:2-702.
“Testator” includes the donee of a power of appointment if the power is exercised in the testator’s will.
(b) Substitute gift. If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator’s will, the following shall apply:
(1) Except as provided in paragraph (4), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift shall be deemed to be created in the devisee’s surviving descendants. The devisee’s surviving descendants shall take by representation the property to which the devisee would have been entitled had the devisee survived the testator;
(2) Except as provided in paragraph (4), 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 shall be deemed to be created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the testator shall pass to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee shall take the share to which the surviving devisee would have been entitled had the deceased devisees survived the testator. Each deceased devisee’s surviving descendants who are substituted for the deceased devisee shall take by representation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this paragraph, “deceased devisee” means a class member who failed to survive the testator and left one or more surviving descendants;
(3) For the purposes of section 560:2-601, words of survivorship, such as in a devise to an individual “if he survives me”, or in a devise to “my surviving children”, shall not, in the absence of additional evidence, be a sufficient indication of an intent contrary to the application of this section;
(4) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph (1) or (2), the substitute gift shall be superseded by the alternative devise if :
(A) The alternative devise is in the form of a class gift and one or more members of the class is entitled to take under the will; or
(B) The alternate devise is not in the form of a class gift and the expressly designated devisee of the alternative devise is entitled to take under the will;
(5) 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 may be substituted for the appointee under this section, regardless of whether the descendant is an object of the power; and
(6) In this subsection:
“Descendant of a grandparent” means an individual who qualifies as a descendent of a grandparent of the testator or of the donor of a power of appointment under the:
(A) Rules of construction applicable to a class gift; or
(B) Rules for intestate succession if the devise of exercise of the power is not in the form of a class gift.
“Surviving descendants of the deceased devisee” means the descendants of a deceased devisee or class member who would take under a class gift created in the testator’s will.
(c) More than one substitute gift; which one takes. If, under subsection (b), 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:
(1) Except as provided in paragraph (2), the devised property passes under the primary substitute gift;
(2) If there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift;
(3) In this subsection:
“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.
“Primary substitute gift” means the substitute gift created with respect to the primary devise.
“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.
“Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation devise.
