[WSBAPT] Lapsed Gift?

Fri May 25 17:15:18 PDT 2018

Doesn’t the anti-lapse statute RCW 11.12.110 come into play here too?

At least as to those beneficiaries named in the Will that are also issue of the Decedent’s grandparents.  So, if the Will doesn’t provide otherwise, then the descendants of the deceased beneficiary take the gift provided in the Will by right of representation before the gift lapses and falls to the residue?

Tara M. Roberts

Puget Sound Law pllc

roberts at pugetsoundlaw.com <mailto:roberts at pugetsoundlaw.com> 

******************************
The information contained in this email is intended as a collegial exchange of ideas, may be incorrect, and is made without warranty of accuracy of any kind.  The ideas and opinions expressed in this message are offered as unresearched thoughts, may be retracted or changed without notice, and do not create any attorney-client relationship.  They should not be relied upon as applicable to any particular fact situation. Thank you.

******************************

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Grant
Sent: Friday, May 25, 2018 3:16 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Lapsed Gift?

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 <http://www.planningwithpurposeinc.com> 

Estate Planning. Business Planning. Wealth Succession.

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

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com <mailto:WSBAPT at lists.wsbarppt.com> 
http://mailman.fsr.com/mailman/listinfo/wsbapt

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20180525/f9759970/attachment.html>