[WSBAPT] X-Spouse as unintended direct beneficiary
Robert R. Cole
cole-gilday at stanwoodlaw.net
Mon Jul 20 17:57:36 PDT 2015
The thing is, it is not really Mom's intent, it is the son's. He
inherited, and he could have made a Will giving it to anyone he wanted,
including his brother, or a drug addled girlfriend. If he did not then
his beneficiary is his father. Mom's intent is really pretty
irrelevant, it seems to me, and it is really a stretch to allow her to
reach so far from the grave.
Very Truly Yours,
Robert R. Cole
Law Office of Cole & Gilday, P.C.
10101 - 270th St. NW
P.O. Box 249
Stanwood, WA 98292
(360) 629-2900 (Telephone)
(360) 629-0220 (Fax)
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On 7/20/2015 5:42 PM, Jill H. Sasser wrote:
>
> 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
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>
> *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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