[WSBAPT] Disclaimer-Anti-Lapse

[Eric Nelsen]

Jayne--I started to answer quickly, then discovered it's more difficult than I thought. I do think the exact language of the bequest is critical, because determination of whether the gift is or is not a class gift resolves the question.

If Jeb disclaims, he's considered to have predeceased the decedent, per 11.86.041(1)<http://app.leg.wa.gov/rcw/default.aspx?cite=11.86&full=true#11.86.041>. So your question is I think, what's the interpretation of the gift of the home between (a) class gift and (b) antilapse statute, RCW 11.12.110<http://app.leg.wa.gov/rcw/default.aspx?cite=11.12.110>. But if uncle has no issue, then antilapse is irrelevant--it can only preserve uncle's share for his (non-existent) lineal descendants.

So: Is this language a class gift, or no? See Peck v. Peck, 76 Wash. 548, 552, 137 P. 137 (1913). I don't think it is, which means that Jeb's one-half share falls to the residue clause of the Will or, if none, passes by laws of intestacy. See In re Sims' Estate, 39 Wn.2d 288, 235 P.2d 204 (1951); See generally 6 William H. Page, PAGE ON THE LAW OF WILLS  ch. 50 (2003 ed.); Thomas E. Atkinson, HANDBOOK ON THE LAW OF WILLS §140 (2d ed. 1953).

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] On Behalf Of Jayne Gilbert
Sent: Friday, October 02, 2015 9:44 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Disclaimer-Anti-Lapse

                                       Article Six
                            Specific Bequests of Property
1.    To my son Jeb my burial plots at XYZ;
2.    To my son Jeb and Ted my home @ ABC; and
3.    To my daughters Jane and Mary the contents of my home.
* Ted is a Grandchild

On Thu, Oct 1, 2015 at 8:36 PM, Katharine P. Bauer <kpb at bpblegal.com<mailto:kpb at bpblegal.com>> wrote:

What is the actual bequest language?
On Oct 1, 2015 7:25 PM, "Jayne Gilbert" <jgilbertatty at gmail.com<mailto:jgilbertatty at gmail.com>> wrote:
Mother/Grandmother Dies Testate

Under an Article entitled "Specific Gifts" An uncle and nephew are given a house.

The uncle disclaims.

The uncle has no issue

QP: Does the Uncle's 1/2 interest go by way of the ante lapse statute or does the nephew inherit the house?

--
*************************************************
Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515<tel:%28360%29%20336-9515>
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--
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Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515
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