A Boilerplate Clause Almost Disinherited a Whole Branch of the Family: What the Tung Trust Case Teaches About the Antilapse Statute

Estate planning documents are full of provisions that feel like standard, forgettable boilerplate — the kind of language a drafting attorney includes as a matter of course, without much thought about whether it will ever actually matter. A recent published decision from the California Court of Appeal is a striking illustration of how much can ride on exactly that kind of clause, and offers a clear, practical walkthrough of one of the more consequential doctrines in trust and estate law: the antilapse statute.

The Basic Problem the Antilapse Statute Solves

Imagine a parent's trust leaves a house to one of three children. If that child dies before the parent, what happens to that gift? Under the general default rule, a transfer to a beneficiary who doesn't survive the person making the transfer simply fails — the gift lapses. Absent some other instruction in the document, that failed gift typically falls back into the estate and gets distributed according to intestacy law, which may or may not reflect what anyone actually wanted.

California's antilapse statute exists specifically to prevent an unintended, almost accidental result: the disinheritance of an entire branch of a family simply because a child or close relative happened to die before the parent. Where the deceased beneficiary was a close relative of the person making the transfer, the statute creates a presumption that the beneficiary's own children should step into their parent's shoes and receive the gift instead — unless the document clearly says otherwise.

What Counts as "Clearly Saying Otherwise"

The whole antilapse framework runs on a single hinge: does the trust or will express a "contrary intention"? If it does, the statute doesn't apply, and the gift lapses in the ordinary way. If it doesn't, the deceased beneficiary's children inherit in their place.

The statute gives one explicit example of what counts as a contrary intention: a requirement that the beneficiary actually survive the person making the transfer, or survive for some specified period afterward. Draft a document that says a beneficiary "must survive by 60 days to receive this gift," and you've created exactly that kind of requirement — courts have found language like that sufficient to override the antilapse presumption.

The Trap in This Case: A Definition That Wasn't a Requirement

The trust at the center of this case contained a provision, tucked into a "miscellaneous provisions" section, stating that anyone named in the trust who failed to survive the person who created it by 30 days would be "considered to have predeceased" her for all purposes of the trust. The trial court read this as exactly the kind of survival requirement that overrides the antilapse statute, reasoning that it couldn't otherwise figure out why the clause was in the document at all.

The Court of Appeal disagreed, and the distinction it drew is genuinely useful for anyone reading — or drafting — a trust. There's a real difference between a clause that defines when someone is treated as having predeceased the settlor, and a clause that conditions a gift on the beneficiary's survival. The trust's language did the former. It never actually said that a beneficiary deemed to have predeceased the settlor under this definition would lose their gift, or that their children wouldn't inherit in their place. It was a definitional provision, not an operative disinheritance clause — and the court held that the difference matters enormously.

Why "I Can't Figure Out What Else This Clause Is For" Isn't Enough

The trial court's underlying instinct — that a provision must mean something, so it must be doing this particular job — is understandable but, according to the appellate court, ultimately unpersuasive. Estate planning documents are frequently full of standard, templated provisions that don't neatly connect to every other part of the document. The court pointed out that the same trust contained a clause about payments to minor beneficiaries through a conservator, even though every beneficiary in the trust was an adult. Boilerplate language doesn't have to have obvious, load-bearing significance just because it's there.

The court also offered a plausible, alternative explanation for why a settlor might include a 30-day survival-definition clause without intending to override the antilapse statute at all: to reduce uncertainty and the risk of disputes in the (admittedly unusual, but not unheard of) situation where the settlor and a beneficiary die close together, such as in the same accident, and it's unclear who died first. Defining these edge cases doesn't require an intent to disinherit anyone's children — it can simply be about avoiding a different kind of fight altogether.

Reading the Whole Document, Not Just the One Clause

The court's analysis didn't stop at explaining what the survivor clause didn't mean — it also looked at the rest of the trust for evidence of what the settlor actually intended. Two other provisions turned out to matter a great deal. One stated that additions to the trust would go to a beneficiary's "then-living issue" if the beneficiary wasn't living — showing the settlor clearly contemplated and provided for grandchildren inheriting in a parent's place. Another, a no-contest clause, penalized anyone who challenged the trust by treating them as having predeceased the settlor "without surviving issue" — language that only makes sense if, ordinarily, a predeceased beneficiary's issue would otherwise inherit. Reading the trust as a whole, rather than fixating on one ambiguous clause in isolation, revealed a document that was actually consistent with the antilapse statute applying, not contrary to it.

The Tie-Breaker: Courts Prefer Interpretations That Avoid Intestacy

When a document's meaning is genuinely unclear, California law provides an additional thumb on the scale: courts are directed to prefer interpretations that prevent a transfer from failing and property from falling into intestacy, rather than interpretations that cause exactly that result. Here, the trust had no backup plan — no alternate beneficiary, no residuary clause — for the specific property left to the deceased child. Reading the survivor provision as a disinheritance clause would have sent a piece of real property into intestate succession despite the settlor having gone to the trouble of creating a detailed estate plan in the first place. That outcome cut against the interpretation the trial court adopted.

The Takeaway

This case is genuinely useful reading for anyone involved in drafting or interpreting a trust:

• Definitional clauses and conditional gifts are not the same thing. A provision defining when someone is treated as predeceased is not automatically a requirement that a beneficiary survive in order to inherit.

• Courts read trust documents as a whole, not clause by clause in isolation — a provision that seems ambiguous on its own can be clarified, or contradicted, by how the rest of the document treats similar situations.

• Boilerplate is genuinely boilerplate sometimes. Courts won't necessarily infer major substantive intent from standard-form language just because a more surgical explanation isn't immediately obvious.

• When in doubt, courts lean toward completing the plan, not undoing it — preferring interpretations that avoid intestacy over ones that create it.

• If you actually want to override the antilapse statute, say so directly — condition the gift explicitly on survival, using language tied to the transfer itself, not just a general definitional clause elsewhere in the document.

For settlors and drafters, the lesson is straightforward: if excluding a deceased beneficiary's children is genuinely the goal, that intention needs to be stated with real clarity, tied directly to the gift itself — not left to inference from a clause that was likely never meant to carry that much weight in the first place.

This post discusses a published California Court of Appeal decision for general informational purposes and is not legal advice.