There is much to commend in O’Brien, Proposing a Model Antilapse Clause, 48 ACTEC L. J. 257 (2023), particularly its flagging of the doctrinal and practical flaws in Uniform Probate Code §2-707, which would apply the concept of antilapse to equitable future interests under irrevocable trusts. An elaboration on these flaws may be found in §8.15.55 of Loring and Rounds: A Trustee’s Handbook (2024), which section in its entirety has been uploaded for this posting. See below. I have long advocated that scriveners have a term in their trust instruments negating any application of the likes of UPC §2-707. The ACTEC article offers some suggestions as to how this might be accomplished. A minor quibble with the framing of the third suggestion is the subject of this posting.
Please see full publication below for more information.