[WSBAPT] X-Spouse as unintended direct beneficiary

[Jill H. Sasser]

I agree with Eric’s response.  However, one possible option I can think of is a TEDRA action pursuant to RCW 11.96A.125—judicial reformation of will pursuant to mistake of law or fact (the decedent did not understand that his ex-wife could be a potential beneficiary of his estate).  Would the drafting attorney be willing to support the action with a declaration stating that the decedent did not intend for his ex-spouse to receive the property, and the decedent did not contemplate the possibility that a son could survive him without issue or that his ex-wife could be his beneficiary?

I think this is a real long-shot, but it’s possible you might reach a settlement in mediation, or get a default, or get a creative judge?

This of course assumes that living son is willing to essentially sue to disinherit his mother (I am assuming the sons had the same mom, which may be wrong), which he may not want to do.  Has son asked his mother if she will disclaim, per Heather’s suggestion?

Good luck!
Jill

Jill H. Sasser | Attorney at Law
[Landerholm Logo]
805 Broadway Street, Suite 1000
P.O. Box 1086
Vancouver, WA 98666-1086
T: 360-696-3312 | F: 360-696-2122
www.landerholm.com<http://www.landerholm.com/>




From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, July 20, 2015 4:59 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] X-Spouse as unintended direct beneficiary

Sounds like my suggestions won't work since the Will isn't ambiguous. Since the first son survived by 40 days, that pretty clearly means the first son inherits half the residue. Therefore, half of T's residue is distributable to first son's Estate, and passes by intestacy to first son's heirs (this is, to his father).

Regrettable but unavoidable I think. If the plan language of the Will doesn't provide a longer minimum survival period, then I don't see a way to challenge the Will based on Testator's intent. Might be able to find a theory that passes CR 11 standard, but it's not likely to be a win.

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 4:39 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] X-Spouse as unintended direct beneficiary

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> [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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