[WSBAPT] [WSBARP] Tenants in Common verses Issue by Right of Representation

[Eric Nelsen]

I agree it is definitely a question of rules of construction. I'd interpret the language here as a class gift because the sentence structure makes the gift to "C1 and C2 or their issue by right of representation." That appears to me to be a single gift to be divided among a defined class of individuals, which under rules of construction means the gift does not lapse unless the entire class is predeceased.

For your scenario, I personally would look for something that more clearly makes separate gifts to C1 and to C2. Something more like "house to husband, but if he fails to survive, then a 50% interest to C1 or C1's issue by right of representation if C1 predeceases me; and a 50% interest to C2 or C2's issue by right of representation if C2 predeceased me; provided, if a child fails to survive me and leaves no issue, then such deceased child's share shall lapse and fall into the residue of my estate."

No doubt, an attorney for C3 could make your argument; I think it's a potentially valid construction that might or might not be bolstered by the broader context of the Will and the Estate assets and the family members involved, etc.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
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 Paul Neumiller
Sent: Friday, September 15, 2017 1:15 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] [WSBARP] Tenants in Common verses Issue by Right of Representation

Why couldn’t the beneficiary under the residual clause say, “Hey, C1 died, I step into C1’s shoes and get ½ interest in the residence.”  Maybe Wife intended C2 to receive only ½ interest in the residence under all circumstances.  Maybe the residual benie is a C3 and Wife wanted C3 to benefit if either or both C1 or C2 dies.  Certainly a situation for a TEDRA agreement.

[cid:image002.jpg at 01D32E2C.DEA54C50]

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: Friday, September 15, 2017 12:35 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>; WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] [WSBARP] Tenants in Common verses Issue by Right of Representation

To make sure I have this right:

1. Wife's Will says house to Husband, but if Husband dies first, then "to C1 and C2 or their issue by right of representation." I assume Wife is mother of C1 and C2.
2. C1 dies. C1 has no issue.
3. Husband dies before Wife.
3. Wife dies.

In that case, C2 inherits the house. C1 has no issue to take by right of representation under the terms of the Will (which mirrors antilapse statute, RCW 11.12.110).

I would interpret this exact phrasing to mean a gift to C1 and C2 as a class, such that the survivor takes all, and the house would only fall out of this bequest and into a separate residue clause if both C1 and C2 died before the Wife and neither of them had any issue.

The Estate of C1 would only take 50% if C1 survived the Wife.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Ms. Roberta Armstrong
Sent: Friday, September 15, 2017 11:04 AM
To: WSBA Probate & Trust Listserv; WSBA Real Property Listserv
Subject: [WSBARP] Tenants in Common verses Issue by Right of Representation

Hello ListServe,

Will provision states:

I give, devise, and bequeath to HUSBAND all my interest in 1234 Apple Street, real property. In the event HUSBAND predeceases me, then I give, devise, and bequeath to CHILD 1 and CHILD 2 or their issue by right of representation, all of my interest in such property.

If CHILD 1 predecease Testator and Husband without issue does CHILD 2 take all? Or does CHILD 1 and CHILD 2 have a tenancy in common and the CHILD 1 estate owns 50% of the real property?

Thank you in advance...
--
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Ms. Roberta Armstrong

Washington State Bar Association No. 42343

Founder and Executive Director

Stewards of Indigenous Resources Endowment,

a Non-Profit Professional Service Corporation

P O Box 2248

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Roberta at IndianWillsOnWheels.org<mailto:Roberta at IndianWillsOnWheels.org>
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