[WSBAPT] Thorny Heirship Question

[Jeanne Dawes]

Dear List Mates:

Testatrix dies leaving, no children, no spouse, but does leave a Will.  In a "special instructions" paragraph directly following the "family" paragraph, she said she is providing for her siblings and identifies 6 siblings, stating that one predeceased beneficiary (PDB) left no issue living or deceased at the time of making the will in 2012.

Testatrix recently passes, and all of her siblings have predeceased her.  Her residue disposition is "(1) one equal share for each of my then living siblings ; (2) one equal share for the issue of each deceased sibling who has surviving issue then living."  No where in the will does it specify "per stirpes", "right of representation" or "per capita" distributions with regards to issue of a deceased sibling.  The will does refer to the statute RCW 11.02.005 to define "issue."

Come to find out PDB (the sibling who predeceased testatrix and left no issue) did actually have 4 children prior to his death said sibling was never married.  3 of the 4 children were adopted.  One child was not.  The unadopted child was born in MT and her birth certificate names the mother and father.  The named father is not PDB, but the mother's husband.  The child never met the father listed on her birth certificate, and believes that her mother and he were divorced at the time of her birth but is not sure.  MT law presumes that a child born within 300 days of a divorce is presumed to be the child of both divorcing parents.

Testatrix's estate is valued at just under 1 million.  Using the "Right of Representation" method the estate would be divided 4 or 5 ways, depending on whether PDB's unadopted child is counted, and she would be the sole recipient of a 1/5 share.  Using the "per capita" method it would be divided equally 13 or 14 ways, depending on whether PDB1's unadopted child us counted.

Questions:      1) I believe the PR has the discretion to decide if per capita or right of representation was intended by the testatrix (PR is a CPA, not a beneficiary under the will, although her spouse is).  PR was testatrix's AIF and handled all her affairs for the 4-5 years prior to death.  Do you concur?  If not, I believe the dispositive will language would be interpreted as a per capital distribution to issue of a deceased sibling?  Do you concur?

      2) Should the PR petition for a court order adjudicating heirship in this probate, if we cannot get unanimous consent of all beneficiaries to a distribution schedule?

                3)  Should the PR petition the court for an order establishing that the PDB's unadopted child is not a legal heir due to the presumption she is the child of the father listed on her birth certificate?   One more fascinating tidbit, in an Ancestry DNA test, the unadopted child was identified as a 1st cousin of one of the other beneficiaries, and has been acknowledged by at least one predeceased sibling as PDB's child (PR's mother-in-law, who considered adopting the child back in the 1960's but never did).  If anyone has handled disinheriting a potential beneficiary under these circumstances, or knows of a reason why this would not work, I would love to have a conversation with you.

Jeanne J. Dawes
Attorney at Law
Gore & Grewe, P.S.
103 E. Indiana Avenue, Suite A
Spokane, WA 99207-2317
Voice:  509-326-7500
Fax:      509-326-7503
jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>

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