[WSBAPT] Lapsed Gift?

[Eric Nelsen]

I would argue that the subject of the sentence is a "gift made by the testator under a will." So the final clause has to be read with reference to that gift, and that testator, and cannot be interpreted to mean the heirs of deceased beneficiary. The only references to the person receiving the gift are as descriptors of the gift, and are grammatically separated from that final clause in a way that makes it more or less impossible for them to be linked.

Also, the phrase "lapses and falls into the residue" necessarily means a lapse of the gift going to the "person" and logically must mean that references to "the residue" (whether distributed by will or intestate succession) must mean the residue of the testator's estate, not the "person" beneficiary's estate.

This is by no means precise diagramming, but I'd read the statute as follows:

If a will [of a testator] 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 [of the testator]
                                [and that residue is] to be distributed [either]
                                                under the residuary clause of the will, if any,
                                                but otherwise according to the laws of descent and distribution.

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 David Faber
Sent: Friday, May 25, 2018 11:59 AM
To: WSBA Probate & Trust Listserv
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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