[WSBAPT] Interpretation of Will provision

Tue May 2 12:09:22 PDT 2023

I agree with Diane.  It’s too risky to distribute only to one individual under one interpretation of this confusing provision, and then have other possible beneficiaries sue the PR.

Best,
Candace Wilkerson

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Tuesday, May 2, 2023 1:40 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>; ak at seattle-silvalaw.com
Subject: Re: [WSBAPT] Interpretation of Will provision

I think the drafting is subject to more than one interpretation and would either insist on a TEDRA signed by all parties or court instructions.  I personally do not think A would take all based on where XY and  Z are named (prior to the terms share and share alike and no taking only if their parent died – to me they read as immediate benes).

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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 Jon Fritzler
Sent: Tuesday, May 2, 2023 10:17 AM
To: ak at seattle-silvalaw.com<mailto:ak at seattle-silvalaw.com>; WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Interpretation of Will provision

Thank you for the reply.  That’s the way I was leaning.  If the grandchildren were intended to be primary beneficiaries it seems to me it would/should have said, “I give all of my estate to my children, A and B,  and my grandchildren X, Y, and Z, and any children [or grandchildren] born subsequent hereto, to be divided equally among said children [and grandchildren], share and share alike, or to their children by right of representation: PROVIDED, that as any child [or grandchild] of mine who has not reached the age of 25 years at the time of my death, such child’s [or grandchild’s] share of my estate shall go to my Trustee hereinafter name in TRUST.”
Believe it or not, the Will was prepared by an attorney.

Sincerely,
Jon M. Fritzler
Attorney at Law
717 E. 22nd St.
Vancouver, WA 98663
Tel. 360.818.4431
Eml fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>

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 Andrekita Silva
Sent: Monday, May 1, 2023 9:58 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Interpretation of Will provision

Law Office of
F.ANDREKITA SILVA
_______________________________________________________

May  1, 2023

Jon,

I would vote for the second option- that A takes 100%.

When construing the provisions of a will, you have to try to ascertain the testator’s intent from the language of the instrument itself, considering the entire instrument and giving effect to every part of the instrument.

It is true that the testator includes his “grandchildren” in the first clause where he says they “share and share alike.” However, the words “by right of representation” would be meaningless if you say the grandkids take in equal shares to the testator’s own children.  When looking at the Will as a whole, it seems the testator was trying to differentiate his “children” from his “grandchildren" by using those two terms.  Otherwise, you’d have to construe the Will to mean the testator wanted his grandchildren’s children to take by representation in the event a child of his left predeceased him, leaving a child (a grandchild), and that grandchild predeceased him, too. He did probably want that but it seems less probable that he drafted with that scenario in mind, and more probable that the testator intended for his grandchildren to take by right of representation (and not equally.)

It is, admittedly, a terribly written Will. Enough for grandkids to fight for an equal share with A.
I hope a lawyer didn’t prepare the Will!

My 2 cents.  I’m curious what others think.   Keep us posted!!

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
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Quoting Jon Fritzler <FritzlerLaw at outlook.com<mailto:FritzlerLaw at outlook.com>>:
I would appreciate hearing how others would interpret the following Will provision:

“I give all of my estate to my children, A and B,  and my grandchildren X, Y, and Z, and any children born subsequent hereto, to be divided equally among said children, share and share alike, or to their children by right of representation: PROVIDED, that as any child of mine who has not reached the age of 25 years at the time of my death, such child’s share of my estate shall go to my Trustee hereinafter name in TRUST.”

Assume that child B predeceased the testator and left no descendants and X, Y, and Z are all adult children of A.

I see two possible interpretations:  A, X, Y, and Z each take 25% because the phrase “I give all of my estate to my children, A and B, and my grandchildren X, Y, and Z” includes the grandchildren, or, A takes 100% because the phrase “to be divided equally among said children share and share alike, or to their children by right of representation” means that A’s children are only contingent beneficiaries and since A survived the testator they take nothing.

Thoughts?

Sincerely,
Jon M. Fritzler
Attorney at Law
717 E. 22nd St.
Vancouver, WA 98663
Tel. 360.818.4431
Eml fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>

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