[WSBARP] will language interpretation

Tue Jul 9 09:05:13 PDT 2019

In your case, I think the “each” and “share and share alike” cause an internal conflict in that sentence.   However, I don’t think it matters since both sisters predeceased the testator (is there a survival clause in the Will?).   My interpretation of “the survivors of them” is the survivor of the two. Therefore, if one sister doesn’t survive, the other sister takes all of the 10% or 20% (paragraphs B and C support this interpretation as well).  Otherwise, it would have to be everyone else in the general population who survive the sisters, not just their heirs.

I would like to hear from others as I also use the term “or the survivor(s) of them” and intend it to mean the survivors of the class.

Regards,

Doris Eslinger
Eslinger Law Office
(425) 451-3237

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Rich McEntee
Sent: Tuesday, July 09, 2019 8:09 AM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] will language interpretation

Hello listmates

I was contacted by a potential client who is looking to commence a probate. PC provided a will that has some dispositive provisions that I am not certain I have seen before and am not clear what exactly what happens when an beneficiary predeceases. The language reads as follows (the facts as I understand them are that both sisters predeceased the testator and both of testator’s children survived him.)

A.           I leave each of my sisters Jane Doe and Joan Doe, share and share alike, ten percent (10%) of my estate. Does this language give each 10% or do they share 10%? (the paragraph continues) If either of my sisters does not survive me, then that beneficiary’s share shall be divided between the survivors of them. Does this mean that is one sister predeceases the testator then her share goes to the other sister? Or does this mean that it goes to the deceased sister’s heirs? The will does not speak to what happens if both predecease? which may be the case as they are remote from the immediate family of the testator.

The next paragraphs goes on to state

B.           I leave my son, John Jones, and my daughter, Jane Jones, share and share alike, the balance of my estate. If either of my children do not survive me, but leave issue surviving me, then that child’s share shall go to his or her issue, equally, per stripes.

C.           If either of my children do not survive me and leave no issue that survive me, then that child’s share shall go equally to my other child if he or she survives me and if neither of them survives me, to his or her issue, per stripes, if his or her issue survive me.

In thinking about rules of construction, do paragraphs B and C tell us how to interpret paragraph A. i.e. if testator intended sister’s heirs to take, then it is clear that he knew how to say so?

Any guidance is appreciated.

Thank you
Rich

RICH McENTEE
McENTEE LAW OFFICE
3800 Bridgeport Way W, Ste A411
University Place, WA 98466
253.227.9894(m)
jrmcentee at gmail.com<mailto:jrmcentee at gmail.com>

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