[WSBAPT] Lapsed Gift?

[Philip N. Jones]

My vote it is the testator.  It falls into his/her residue, but if there is no residue, then intestacy.  It would seem illogical that the lack of a residue in the will would toss the asset out to someone else’s intestacy.
Phil Jones
Portland, OR

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Friday, May 25, 2018 11:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Lapsed Gift?

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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