[WSBAPT] Lapsed Gift?

[David Faber]

I'm working a probate with a Will that leaves all household goods in a
specific bequest to a person who predeceased the decedent by three months.
The Will does not condition the gift on the specific gift recipient's
survivorship.

To review the implications of this gift, I went to the WSBA probate
deskbook first, which makes the assertion that "Unless otherwise provided
under the terms of the will, the devise or bequest shall lapse if the
devisee or legatee fails to survive the testator" then cites to RCW
11.12.120.

When I review RCW 11.12.120, the plain language appears to be ambiguous by
providing for a potential diametrically-opposite interpretation. Here's the
language of 11.12.120:

"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*."

Here, is the "otherwise according to the laws of descent and distribution"
language referring to the decedent whose Will is being probated, or does it
refer to the laws of descent and distribution for the predeceased specific
beneficiary? I can easily make the argument either way. The language is
ambiguous and though I want to go with the interpretation provided in the
deskbook, I don't feel confident that the other interpretation is
clean-cut. Thoughts?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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