[WSBAPT] Lapsed Gift?

[Paul Grant]

I agree with everyone's input - just one other thought as we read the
statute.... to get to the second section of the statute, the first must be
true.  Most wills and specific gifts that I see in a will do not have a
specific requirement that the beneficiary survive the testator  in order to
take.  I think it is implied, but in reading the statute surviving is a
requirement that must be in the will.  Therefore, if, as most I see, the
will states:  I give mary smith $1,000.  If she does not survive me
then..... the "if she does not survive me" is not a condition, it is simply
the next step, so in my opinion the condition of the statute is missing and
this gift would not fall under this statute.  Most wills are even more
basic and simply state: I give mary smith $1,000.  That simplicity
definitely does not have the condition of survivorship as posed by the
statute.


Paul H. Grant - JD, LL.M

Planning with Purpose, Inc
Lynnwood, WA 98036
425-939-9948
www.planningwithpurposeinc.com

Estate Planning. Business Planning. Wealth Succession.

On Fri, May 25, 2018 at 11:59 AM, David Faber <david at faberfeinson.com>
wrote:

> 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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