Notes to Counsel to petition the court
any comments would be appreciated?
The relevant part of his will which allocates his estate states, ” my sisters living are to receive 1/6 of my estate. Those deceased sisters families are to receive the other 4/6 of my estate. This is the children of my deceased sisters.” Except for the small bequest to his parish, there are no other words in the will that allocate his estate.
The estate consists of the whole, which is 6/6. At the time the will was written, two of XXX sisters, XX and X , were living. In his will he specifically states that “Those deceased sisters families are to receive the OTHER 4/6 of my estate.” The probate code states that words are considered to have their common meaning. The words “Other 4/6” clearly means that 2/6 have already been allocated to his two living sisters, each of whom was to receive 1/6 of the estate. He most likely used this formulation to account for the possibilities that one or both of his sisters then living may predecease him. The will also clearly states that his deceased sisters’ families, defined as his deceased sisters’ children, are to receive the other 4/6 of his estate. Since no other distinctions are made in the will with regard to the children of his deceased sisters, the children of his deceased sisters define a class which is XXX niece and nephews. Therefore, the members of this class share and share alike in the remaining 4/6 of the estate of XXX.
However, since XXX wrote his will in 1988 one of his sisters, namely XX, has died. Based upon the words in the will, his sole remaining living sister, X, will receive 1/6 of his estate. Based on the words in the will, the other portion of his estate now becomes 5/6 instead of 4/6 because the whole is still 6/6 and there are no other words in the will to account for the distribution of the entire estate except the distribution to his sisters either living or deceased. Since XX is now deceased, her children are now included in the class of his “deceased sisters children.” Thus at the time of XXX death, the living children of his deceased sisters, that is his nieces and nephews, are the beneficiaries of the OTHER 5/6 of his estate to share and share alike.