[WSBAPT] Unusual Codicil Distribution Scheme Question

[Mark Vohr]

Ryan –

          What a mess.  Reminds me of a clause in a will that reads “To my son-in-law I leave a length of rope long enough to hang himself.”

          Assuming it is a valid codicil, I might be risky to ignore (abstain).  Could beneficiary 5 force a vote?  Could the four beneficiaries vote to give a modest amount?   Also sounds like beneficiary 4 is getting the dirty end of the stick.   There are also the gift tax implications, i.e. giving up a valid interest.

          I would think it best to start with a meeting between beneficiaries 1-4.  Recognize this creates a problem to be addressed and see if they can come up with a solution that can be reduced to writing in an agreement under RCW 11.98A.220 that beneficiary 5 will also sign off on.  If they can all reach a consensus, that is always best.

Regards,

Mark

Mark C. Vohr, J.D. CPGC
Ohana Fiduciary Corporation
A Washington Trust Company
155 NE 100th St., Suite 209
Seattle, WA  98125
Telephone:  (206) 782-1189

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Ryan Castle
Sent: Friday, February 7, 2025 9:13 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Unusual Codicil Distribution Scheme Question

OK this would make a good bar exam question maybe:

I represent a PR in a large WA testate estate. PR is daughter of deceased. No spouse. PR just appointed by court, no bond, nonintervention. Decedent executed valid Will with attorney representation. Then years later decedent executed valid codicil without assistance of attorney (!!!). The Codicil has a horrible distribution scheme that reads:

Beneficiary 5 "to receive an amount agreed upon by" PR (also Beneficiary1), Beneficiary 2, Beneficiary 3, and Beneficiary 4 "by mutual decision. PR (Beneficiary 1) is the tie breaker."

Beneficiary 5's gift would come out of residuary, thereby reducing gifts of other residuary beneficiaries listed in Will. Of the "voting" benes, only bene 4 is a residuary beneficiary. My concern obviously is the discretion given to my client PR who has fiduciary duties to estate/beneficiaries. I am inclined to advise that my client simply "vote" to follow the original will distribution scheme in order to adhere to her fiduciary duties. The other "voting" beneficiaries seem inclined to do the same but unsure at this point.

Any advice on how to handle this horribly drafted clause to protect my client? Best if they all simply abstain from voting, assuming they all agree to do that? I assume the "voting" Benes should document their decision via TEDRA Agreement?

--

Ryan Castle (he/him)
Castle Law Firm, PLLC
Managing Attorney
T: 360-592-3504
1313 E. Maple St., Suite 790
Bellingham, WA 98225
https://ryancastlelawfirm.com/<https://urldefense.proofpoint.com/v2/url?u=https-3A__ryancastlelawfirm.com_&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=4bpJF4tssaPRa_EVHGePpnckOE0MD50PB7FJAQFzYzfPO2xt-aghUaCOrCQrNQTH&s=MUKvLpcVejOWN-Wvpa52VOwAelVyywzKcLKleM50w7k&e=>


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