[WSBAPT] Lapsed bequest - Per Capita Question

Thu Sep 15 09:31:40 PDT 2016

I’m not so sure.  As I read the statute, saying per capita is “providing otherwise”… if the will had said “per stirpes” or “by right of representation” or even if it has said nothing, the grandchild would take. But here the testator provided otherwise and by using a word that is not commonly used in wills, and in the absence of a scrivener’s error, C’s child is, unfortunately, out.  The lapse is never triggered under RCW 11.12.120 (1) for it to be saved by the anti-lapse statute.  If there is a clear mistake by the drafter or by the testator that you can establish, you could use RCW 11.96A.125 to do a post mortem amendment of that language, but absent that sort circumstance, you are stuck, and A and B each take half.

In any event, you will be better off in the long run if you ask the court to confirm your interpretation, with notice to all interested parties.

Elizabeth G. Bateman 

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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: Thursday, September 15, 2016 8:45 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Lapsed bequest - Per Capita Question

Elizabeth:

I agree with your analysis.  “Per capita” does not affect the anti-lapse provisions.  From what I can divine from other parts of the Will and anecdotes from family, testator (and the drafting attorney) probably did intend for everything to go to his children only, but this section and other sections of the Will were not written very clearly and I think the result is 1/3 each to A,B and C, as you have concluded.

Thanks to those of you who responded and helped me think this one through.

-jbd-

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Elizabeth Wallace
Sent: Wednesday, September 14, 2016 2:07 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Lapsed bequest - Per Capita Question

The phrase “per capita” doesn’t automatically mean you can ignore the anti-lapse statue. Per capita and per stirpes are methods for describing how inheritances are to be apportioned. It is not a method for answering the question of what happens when a person predeceases the testator. That is left to the anti-lapse statute. 

My understanding is that the gift would actually go to A and B and the child of C, with all of them getting one-third share. 

That being said, you could certainly make the argument as to the testator’s intent precluding the anti-lapse statute. But I don’t think you’ve got an easily settled case that A & B get everything equally.

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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 Julie Martiniello
Sent: Wednesday, September 14, 2016 1:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Lapsed bequest - Per Capita Question

This is my understanding:

If the Will says Per Capita, then the distribution would go to A and B equally. As Tom said, there is no lapsed gift because he put Per Capita in his Will.

C's child must get notice of the probate as he/she is an heir at law by right of representation and notice is required to all heirs at law in Washington. 

On Wed, Sep 14, 2016 at 11:55 AM, James B. Dolan <jbdolan at jbdolan.com <mailto:jbdolan at jbdolan.com> > wrote:

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

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