[WSBAPT] Lapsed bequest - Per Capita Question

Wed Sep 14 13:27:33 PDT 2016

Jim,

I don't have the legal authority to show you for this, but it has always
been my understanding that when the decedent's will says "per capita"
then the decedent has already contemplated the possibility that one
child might predecease the others and how the decedent wants that
handled. In that case, it is not a lapsed gift. A lapsed gift would be
where the decedent did not provide direction as to what happens. Just my
2 cents..........

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

Rodgers, Kee & Card, P.S.

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of James B. Dolan
Sent: Wednesday, September 14, 2016 11:56 AM
To: 'WSBA Probate & Trust Listserv'
Subject: [WSBAPT] Lapsed bequest - Per Capita Question

Colleagues:

Somewhat chagrined to ask the following . . . 

Decedent's Will states in Article pertaining to family:

"I am the single father of three children, A, B, and C.  The provisions
of this Will shall apply to my child(sic) named above, and their issue
and any children who may be hereafter born to or adopted by me."

Decedent's Will states in Article pertaining to disposition of property:

"I give all of my property and estate to be equally divided between my
children, A, B and C, per capita." (Emphasis in original.) That's it -
no other conditions regarding beneficiaries are stated.

A and B are alive, C predeceased decedent, leaving one child.

RCW 11.12.120

Lapsed gift-Procedure and proof.

(1) If a will makes a gift to a person on the condition that the person
survive the testator and the person does not survive the testator, then,
unless otherwise provided, the gift lapses and falls into the residue of
the estate to be distributed under the residuary clause of the will, if
any, but otherwise according to the laws of descent and distribution.

(2) If the will gives the residue to two or more persons, the share of a
person who does not survive the testator passes, unless otherwise
provided, and subject to RCW 11.12.110
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.110> , to the other
person or persons receiving the residue, in proportion to the interest
of each in the remaining part of the residue.

The "per capita" language is giving me pause, and I have talked with two
different attorneys who have offered two different opinions.

Question 1: does estate get divided between A and B only (1/2 each), or
does estate get divided between A, B, and child of C (1/3 each)?

Question2: regardless of answer to Question 1, does C's child receive
notice of the probate?

Thank you for your insights.

Jim Dolan

===================

Jones Butler Dolan, PS

www.jbdolan.com

www.jonesbutlerdolan.com

Mount Vernon

P.O. Box 2784

415 Pine Street 

Mount Vernon, WA 98273

Telephone: 360-336-2939

Facsimile: 360-336-2949

Stanwood

P.O. Box 458

10027 - 269th Place NW (SR 532)

Stanwood, WA 98292

Telephone: 360-629-3833

Facsimile: 360-629-6253

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