[WSBAPT] X-Spouse as unintended direct beneficiary

Mon Jul 20 16:39:28 PDT 2015

I apologize for the lack of clarity, I hope this helps.

Both sons survived beyond the 120 hr limitation. One son died approx. 40 days after T, the other son is still living.

T's will specifically bequested the bulk of T's estate to the still living son. The Will's residuary clause leaves T's estate to both, if both survive T. If a son did not survive T, the deceased son's share would go to the deceased son's issue, if deceased son had no issue then the deceased son's share would lapse and merge into the living son's share leaving the living son as the sole beneficiary.

I don't think the will is ambiguous, I do think it failed to embody T's intent by not addressing what was an unlikely event. The reality of the natural construction is the absurd result that the former spouse shares directly in T's estate, albeit indirectly through the deceased's sons estate. I think this construction misses the testator's intent. It is my understanding that the courts paramount obligation is to determine T's intent and to give it effect, and the rules of construction prohibiting extrinsic evidence from being admitted where a will is unambiguous are "subordinate" to that obligation. In re Riemcke's Estate, 80 Wn.2d 722, 727 (1972).

Regards,

Matthew R. Johnson| Attorney at Law
Gravis Law, PLLC
P.O. Box 182 | 350 E. Main St.
Dayton, WA 99328
509-382-2030 (office)
509-952-2947 (cell)
Website <https://www.gravislaw.com/> - LinkedIn<https://www.linkedin.com/pub/matthew-r-johnson/2b/997/87a>

NOTICE:  This email (including any attachments) is covered by the Electronic Communications Privacy Act (EPCA), 18 U.S.C., Sec. 2510 - 2522, is confidential and privileged.  This email is solely for the personal and confidential use of the recipient(s) named above.  Receipt by anyone other than the individual recipient(s) is NOT a waiver of attorney-client privilege.  Any violation of the ECPA is subject to the penalties stated therein. If you have received this message in error, please notify me immediately by reply e-mail to matt at gravislaw.com<mailto:matt at gravislaw.com> and immediately delete the original message.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, July 20, 2015 3:52 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] X-Spouse as unintended direct beneficiary

I'm not sure I follow the scenario, but I'm guessing:

T and ex-spouse had two sons. First son predeceased T without issue. Second son did in fact survive T long enough to inherit but died shortly thereafter. So, it's really the son's Estate distribution we are talking about now: and the son's sole heir by intestacy is his surviving parent, T's ex-spouse. Son has no living issue so parents inherit.

If that's the case, then it is what it is and ex-spouse inherits. The problem is the Will that contains "if son survives" language but didn't specify a long enough time period for survival to make it emotionally "valid" that the son did in fact survive to inherit T's estate.

Possible avenues to challenge:

Does language of the Will clearly avoid the 120-hour survival requirement under RCW 11.05A -- see .060(2). If in fact the son died within 120 hours such that it might make a difference.

Can you make an argument under the totality of the Will provisions that the intent of the Testator -- T -- would be to prefer intestacy to T's heirs, as opposed to intestacy as to T's son's heirs. This is really only feasible if the Will language is sufficiently ambiguous.

Other than that, I got nothin'.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Matt Johnson
Sent: Monday, July 20, 2015 3:09 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] X-Spouse as unintended direct beneficiary

The situation:

Divorced T died leaving entire estate two T's two sons on the conditioned that they survive T. If either son predeceased T without issue, that son's gift shall lapse and all interest shall go to the surviving son.

One son technically survived T, but died intestate shortly thereafter with no issue and no spouse. The result is T's x-spouse is now substituted in the deceased son's place as the sole beneficiary of his estate. The language of T's will strongly indicates no intention to give anything to T's x-spouse, and although x-spouse is not technically a direct beneficiary that is the reality of the situation.

Question:

I can't seem to find any authority in any state directly on point. If anyone has come across a similar situation or could point me in a direction, I would greatly appreciate it.

Regards,

Matthew R. Johnson| Attorney at Law
Gravis Law, PLLC
P.O. Box 182 | 350 E. Main St.
Dayton, WA 99328
509-382-2030 (office)
509-952-2947 (cell)
Website <https://www.gravislaw.com/> - LinkedIn<https://www.linkedin.com/pub/matthew-r-johnson/2b/997/87a>

NOTICE:  This email (including any attachments) is covered by the Electronic Communications Privacy Act (EPCA), 18 U.S.C., Sec. 2510 - 2522, is confidential and privileged.  This email is solely for the personal and confidential use of the recipient(s) named above.  Receipt by anyone other than the individual recipient(s) is NOT a waiver of attorney-client privilege.  Any violation of the ECPA is subject to the penalties stated therein. If you have received this message in error, please notify me immediately by reply e-mail to matt at gravislaw.com<mailto:matt at gravislaw.com> and immediately delete the original message.

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