[WSBAPT] Lapsed Gift?

[David Faber]

Thank you for that quality parsing. That helps a lot.

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

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On Fri, May 25, 2018 at 12:54 PM, Eric Nelsen <Eric at sayrelawoffices.com>
wrote:

> 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
>
>
>
> *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
> This communication may contain privileged or other confidential
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