[WSBAPT] Disposition of Estate per Poorly Written Will

[Inge Fordham]

Thanks, Eric.  Very helpful.


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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>

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From: <wsbapt-bounces at lists.wsbarppt.com> on behalf of Eric Nelsen <Eric at sayrelawoffices.com>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Date: Tuesday, November 3, 2020 at 9:45 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Disposition of Estate per Poorly Written Will

My $0.02:

I agree, granddaughter of predeceased child S2 receives nothing.

I think "my property" just means everything, real and personal, tangible and intangible. More artful language might have been helpful, but I would call on the general rules of construction that (A) a testator is presumed to want nothing to pass by intestacy, and (B) a will must be construed to effectuate a testator's intent and technical rules of construction should not be used to thwart intent.

For predeceased S1 who is named in the will as a beneficiary, S1's children take his share by right of representation automatically, per RCW 11.12.110<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.110>. So 1/2 to D1, and 1/2 by right of representation to S1's issue.

Your comment about it seeming unfair that S2's granddaughter receives nothing, makes me think that you know something about decedent's relationship with her that leads you to believe the omission wasn't intentional, but is just a bad result from a poorly written will. That is really a sad result here, but as you've described the will I don't see any alternative interpretation. Even if the will didn't mention S2 at all, I don't think the issue of S2 could argue for a share, if the "all my property" clause specifically says that “I give my property to my children, S1 and D1, in equal shares.” That is pretty plainly limiting the scope of beneficiaries to S1 and D1 and their issue.

Without knowing anything further, I can imagine the possibility that the decedent didn't have a relationship with S2's granddaughter, and the omission might have been intended.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Inge Fordham
Sent: Monday, November 2, 2020 6:38 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Disposition of Estate per Poorly Written Will

Colleagues,

I have a probate involving a poorly written last will and testament (created without assistance of counsel).  It names a son and daughter as co-personal representatives.  The will says nothing about what happens if one of the co-personal representatives predeceases the testatrix.  Here, the son predeceased the testatrix and therefore, the daughter will serve as the sole personal representative.

My primary question has to do with the disposition of property.  The testatrix initially had 3 children.  I’ll call them S1, S2, and D1.  S2 died decades ago and left a granddaughter.  A prior version of the will left S2’s share of the estate to the granddaughter.  The later, operative will identifies S2 (and recognizes that he predeceased the testatrix) but leaves nothing for the granddaughter.  Since the will names him but leaves nothing to his issue, I believe S2’s daughter gets nothing.

As to the disposition of property, the will simply states: “I give my property to my children, S1 and D1, in equal shares.”  It says nothing about real versus personal property or intangible assets.  Is the term “my property” sufficient to cover real property and intangible assets?

The will does not say what happens when a beneficiary predeceases the testatrix.  For example, it does not say “my children who survive me” or “per stirpes.”  Subsequently, S1 predeceased the testatrix.  How is the personal representative to treat this?  Does everything go to D1?  Or ½ to D1 and 1/6 to each of S1’s 3 children?  The latter seems patently unfair given that S2’s daughter takes nothing.

Thank you in advance for your thoughts.

Best regards,


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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>

Confidential Communication: This email is sent to a recipient on behalf of an attorney/law firm, and is information intended exclusively for the individual, entity or company to which it is sent.  This communication may contain proprietary, privileged or confidential information or may otherwise be legally exempt from disclosure other than to the intended recipient.  If you are not the named addressee, you are not authorized to read, print, retain, copy or otherwise disseminate this message or any part of it.  If you have received this email in error, please notify the sender immediately by email or other communication and delete all copies of the message.
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