[WSBAPT] Share and Share alike/Anti-lapse statue question

Wed Sep 14 11:46:14 PDT 2022

Hi All,

I have Will that states: "I give, devise, bequeath and convey my entire estate ... unto my three sons, ..., in equals shares, to share and share alike."

One of the son's predeceased the decedent with lineal descendants.  There Will does not provide for an alternate distribution in event that a child predeceased the decedent.

That said, from my reading of the case law, it appears that the anti-lapse statute would still apply notwithstanding the term "share and share like"

In re Estate of Bergau, 103 Wash.2d 431, 435, 693 P.2d 703 (1985); accord In re Estate of Niehenke, 58 Wash.App. 149, 152, 791 P.2d 562 (1990), aff'd in part, 117 Wash.2d 631, 818 P.2d 1324 (1991). A presumption arises in favor of the operation of the anti-lapse statute. In re Estate of Niehenke, 117 Wash.2d at 640, 818 P.2d 1324. The burden of showing that the statute should not operate falls upon the party opposing it. All doubts are to be resolved in favor of the operation of the statute, which is to be liberally construed. In re Estate of Niehenke, 117 Wash.2d at 640, 818 P.2d 1324; In re Estate of Allmond, supra, 10 Wash.App. at 871-72, 520 P.2d 1388. A testator is presumed to be aware of the anti-lapse statute; further, it is presumed that the testator intended the statute to apply unless a contrary intent is shown. In re Estate of Niehenke, 117 Wash.2d at 640, 818 P.2d 1324; 96 C.J.S. Wills § 1217(a) 1057 (1957). The intent on the part of the testator to preclude operation of the statute must be clearly shown. In re Estate of Niehenke, 117 Wash.2d at 640, 818 P.2d 1324. The presumption in favor of the anti-lapse statute does not apply if the testator provides for an alternative disposition. In re Estate of Button, supra, 79 Wash.2d at 854, 490 P.2d 731.Estate of Rehwinkel, In re, 862 P.2d 639, 71 Wn.App. 827 (Wash. App. 1993)

Our primary duty is to determine the testator's intent from the will in its entirety. In re Estate of Niehenke, 117 Wash.2d at 639, 818 P.2d 1324. Where the testator uses words of survivorship indicating an intention that the devisee shall take the gift only if he survives the testator, the statute does not apply. Annot., Antilapse Act-Testator's Intention, 63 A.L.R.2d 1172, 1186 (1959).  Estate of Rehwinkel, In re, 862 P.2d 639, 71 Wn.App. 827 (Wash. App. 1993)

Any thoughts would be greatly appreciated

Sincerely,

Kevin J. Copp
Attorney at Law
Kent Probate, Wills & Trusts
24837 104th Ave. SE, Suite 101
Kent, WA 98030
(253) 277-1254
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Heather de Vrieze
Sent: Wednesday, September 14, 2022 11:35 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Joint Account (wros) and final distribution

Jeff,

Your client's position is the presumption under the law. Evidence that the intent was otherwise (i.e. not intended to go to Personal Representative/friend) could overcome that presumption. Intent matters in these situations.

Is the Personal Representative also seeking payment for services? Maybe the account was intended to cover such fees.

Is the Personal Representative also a beneficiary of probate assets, or is this it? Would Personal Representative have taken the job if they knew they weren't getting anything from that account, but could only be compensated for services provided.

How much are we talking about. If it doesn't dramatically change the ultimate distribution to the beneficiaries, maybe they won't care. If you disclose it in a final "report" or "accounting" and they still sign their receipt and waiver, it won't matter.

I think the client needs to understand the possibility of their receipt of the account being challenged, and the beneficiaries need to know the account exists so they have the opportunity to voice a challenge. I would generally not expect a challenge unless the amount at stake was substantial or knew the family dynamics.

Heather

Heather S. de Vrieze
Attorney-at-Law
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>
Sent: Wednesday, September 14, 2022 10:56 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Joint Account (wros) and final distribution

Listmates:

This is a combined legal and ethical question.  Decedent set up bank account with the PR (friend) as JTWROS so the PR could easily pay bills and fund probate.  Only the decedent's money went into the account.  PR now, appears, to take the position that the money is hers; and has reimbursed the joint account, from the estate account, for probate costs.  I anticipate at least one beneficiary, a big charity, will challenge these transactions.  There have been discussions about joint accounts, but will the Court honor the JTWROS or deem it an estate asset?  What are my duties to defend the PR's position?  I look at the Trask case, but not sure how it applies here.  Your perspective would be helpful.

Jeff Davis

W. Jeff Davis
BELL & DAVIS PLLC
Attorneys at Law
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
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