[WSBAPT] Ambiguity in will.

Fri Sep 2 14:18:13 PDT 2022

Agreed times five (six now maybe? 😊), and I think Jeff’s is the most straightforward path to the right outcome.

But, darn it, I’d already diagrammed this to check myself, and now Ken is asking, so I’m sending it anyhow, just in case Son tries to prove an interpretation that makes his survival change the analysis.

Here’s my argument why Son is disinherited even if he survives:

The sentence either means:

  1.  I make no provision in this Will for my son . . . if he does not survive me.

–and–

  1.  I make no provision in this Will for my son[’s] . . . descendants if he does not survive me. [or alternatively, “I make no provision in this Will for my son[’s] . . . descendants . . .”]

OR

  1.  I make no provision in this Will for my son.

–and–

  1.  I make no provision in this Will for my son[’s] . . . descendants if he does not survive me.

To we responders, options 3 and 4 are the only reasonable interpretation of this poorly drafted sentence. Indeed, I doubt it would take most readers long to conclude so.

To inherit, son would have to prove that options 1 and 2 are intended and the most reasonable interpretation.

But option 1 makes no sense, because why would Testator make provision (or no provision) for someone on the condition that “he does NOT survive” Testator?

It is not only unintuitive, such an unusual “intention” should require (of Son, proposing the interpretation, and Testator, if intending it) more explanation or context than is provided by the sentence.

And, Option 1 must “go with” one of the alternative interpretations of Option 2, because anyone proposing Option 1 as the proper interpretation must explain also how to read the “descendants clause” – it cannot be ignored just because Son survived or some such argument. No court would allow an interpretation that does not make sense of both clauses.

And, once you must interpret the “descendants clause” somehow, then it simply defies any canon of interpretation to assert that the language “if he does not survive me” only modifies “my son” and NOT the descendants clause as well. (That is what my “alternative option 2” states above, but it’s just nonsense.)

Therefore, if 1 is correct, 2 must be correct as well. And, then, it just makes 1 nonsense, because, if 1 is correct, then the Testator must be assumed to have used THIS language of all the available language to provide for Son if Son survived Testator and NOT for his descendants if he did not survive.

So once Son has to prove that that interpretation is the most reasonable one a court can provide, he loses – because it just isn’t. It’s ludicrous and unintuitive. In that instance, the sentence would simply read “I make no provision in this Will for my son’s descendants if he does not survive me.”

Anyhow, that is my approach to pinning this down. But, as I said, Jeff’s may be the most straightforward path.

Good luck! Best, Josh

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sara Longley
Sent: Friday, September 2, 2022 2:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Ambiguity in will.

That’s my reading as well. Terrible drafting though!
Sent from my iPhone

On Sep 2, 2022, at 1:33 PM, Kerry Brink <Kbrink at vjglaw.com<mailto:Kbrink at vjglaw.com>> wrote:
 I definitely think I would read it as the son gets nothing. I would read it that Son gets nothing and likewise son’s descendants get nothing if Son does not survive testator.
Sent from my iPhone

On Sep 2, 2022, at 1:23 PM, Ken Luce <Ken.Luce at lucelawfirm.com<mailto:Ken.Luce at lucelawfirm.com>> wrote:

Can someone tell me how to interpret this? A Will provides:
          “Except as provided blow, I make no provision in this Will for my son___,
         nor his descendants, if he does not survive me.” The son survived. The
will makes no further mention of the son and leaves the RRR to
someone not his son.  Does the above language  disinherit the son?
Nothing is said about if or what the son inherits if he does survive.
All help appreciated.

Kenyon Luce
Luce & Associates, P.S.
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Tacoma, WA 98424
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