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leelee4116

wording in will

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CA uncle's will written in 1986 but he did not die until 2013. He has 6 sisters, 4 were deceased at the time he wrote the will, 1 of the 2 living sisters has died after he wrote the will but before he died.

He states he leaves 2/6 of his estate to his living sisters and 4/6 to his deceased sisters children.

question 1~does the only living sister get 2/6 of his estate?

question 2~if the children of the deceased sisters are deceased, does the estate get split between the living children or does it go to the next generation?

 

His intentions were to split the estate between his 6 sisters, and if they were deceased the neices and nephews would get their mothers share. However, I'm not sure the court would read it this way.

 

 please comment

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unfortunately, no per stripes or per capita cited.

 With respects to live vs deceased sisters,  does the court read the will as it was written in 1986 or as of date of death in 2013?

 

Any websites I can check for CA case law?

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question 1~does the only living sister get 2/6 of his estate?

 

Depends on what, if anything, the will says should happen to the 2/6 in the event either or both of the two sisters predeceased your uncle.  Does it say anything about that?  If so, what does it say?  Also, does the will have any provision for disposition of any residuary not disposed by the 2/6:4/6 split you mentioned?  If so, what does it say?

 

 

 

question 2~if the children of the deceased sisters are deceased, does the estate get split between the living children or does it go to the next generation?

 

It goes to the next generation unless the will says otherwise (although I'd like to see the exact wording of the will to be certain about this -- care to quote it?).

 

 

 

His intentions were to split the estate between his 6 sisters, and if they were deceased the neices and nephews would get their mothers share.

 

Says who?  Based on what?

 

 

 

His "intentions" are pretty much irrelevant.

 

The California Probate Code says otherwise.  What's not relevant are the opinions of others regarding his supposed intentions which conflict with the language of the will.

 

 

 

 With respects to live vs deceased sisters,  does the court read the will as it was written in 1986 or as of date of death in 2013?

 

I'm not sure what you mean by this.  How would "read[ing] the will as it was written in 1986" differ from "read[ing] the will . . . as of date of death in 2013"?  Again, it might be helpful if you quote the exact language of the will (with any names omitted or changed, of course).

 

 

 

Any websites I can check for CA case law?

 

www.findlaw.com and www.justia.com, among others, but it's not clear why you think case law research is necessary.

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My living sisters are to receive 1/6 of my estate. Those deceased sisters’ families are to receive the other 4/6 of my estate, that is, the children of my deceased sisters.

 

Note:

At the time he wrote the will, he had 2 living sisters, at the time of his death, he only had 1. His wife predeceased him and he did not have any children. He had total 6 sisters.

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My living sisters are to receive 1/6 of my estate. Those deceased sisters’ families are to receive the other 4/6 of my estate, that is, the children of my deceased sisters.

 

That is the exact wording of the will?

 

While I can understand your "what happens with the subsequently deceased sister's share", I am reasonably confident that a court would interpret the "living sisters" phrase as meaning the sisters living at the time the will was executed.  Therefore, in the absence of any other wording dealing with a predeceased beneficiary, the share of the subsequently deceased sister would be handled under CA's anti-lapse statute.  In other words, that sister's descendants would share that bequest.

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yes, this is the exact wording.

 

Would a lapsed devise to a neice or nephew(of the 4/6) pass to their offspring?

 

 

With respect to the "intentions".

He and I had discussions about his intentions, unfortunately the meeting with the attorney was scheduled 1 day too late and his will was not updated. 

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Note that you did not answer most of the questions I asked, so I am limited as to what additional information I can provide.

 

 

My living sisters are to receive 1/6 of my estate. Those deceased sisters’ families are to receive the other 4/6 of my estate, that is, the children of my deceased sisters.

 

Interesting -- especially since you confirmed that this is the exact wording and that, for example, it does not say, "Each of my living sisters is to receive 1/6 of my estate."  As phrased, this arguably provides that the two living sisters would split 1/6 of the estate and that 1/6 of the estate is unaccounted for, not that each of the two sisters who were living in 1986 would receive 1/6.

 

Of course, if only one sister is now living, the issue may be moot, and the surviving sister might receive 1/6 of the estate.  How the court will deal with the issue of the five predeceased sisters is difficult to predict.  It may be that the surviving sister will get 1/6 of the estate, that 2/3 (4/6) of the estate is distributed to the issue of the five predeceased sisters on a per stirpes basis, and that the remaining 1/6 of the estate will be distributed pursuant to intestate succession law (which would mean that the surviving sister would get an additional 1/36 of the estate and that the remaining 5/36 would be added to the 2/3 that is distributed to the issue of the five predeceased sisters).  Other possible interpretations of this very poorly written provision exist.

 

Whomever the court appoints to serve as executor should hire a good probate attorney to assist with this.

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Interesting -- especially since you confirmed that this is the exact wording and that, for example, it does not say, "Each of my living sisters is to receive 1/6 of my estate."  As phrased, this arguably provides that the two living sisters would split 1/6 of the estate and that 1/6 of the estate is unaccounted for, not that each of the two sisters who were living in 1986 would receive 1/6. 

 

 

I just gotta believe that there is an "each" in there somewhere.

 

Or leelee was putting his/her own interpretation on the will in the first post:

 

He states he leaves 2/6 of his estate to his living sisters and 4/6 to his deceased sisters children.

 

 

:o :o  :o

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I just gotta believe that there is an "each" in there somewhere.

 

Or leelee was putting his/her own interpretation on the will in the first post:

 

 

:o :o  :o

exactly why I wanted to get others interpretation, his intentions were clouding my thinking. THANKS for the input!

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exactly why I wanted to get others interpretation, his intentions were clouding my thinking. THANKS for the input!

 

You mean to say that the will actually states 1/6th to the two living (at that time) sisters?  And just leaves 1/6th dangling?

 

If so, there is such a thing as asking the court to interpret the will and correct what seems to be a pretty obvious error.

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My living sisters are to receive 1/6 of my estate. Those deceased sisters’ families are to receive the other 4/6 of my estate, that is, the children of my deceased sisters.

 

 

yes, this is the exact wording. 

 

So, the first quote above is an exact quote?  If so, then I think you have a problem for the reason I mentioned above.

 

It may be easily fixable by having all persons involved agree on a particular interpretation.  However, when you're talking about living issue of five deceased persons, then you're potentially talking about several dozen persons, and getting them all to agree -- in writing -- to a particular interpretation could be a logistical nightmare (I can tell you that from personal experience since my job often requires me to seek consent from half a dozen people to distributions of money that are compelled by law, and it's not always simple to get even that small a number of persons to agree).

 

Fortunately, you're only really talking about two possible interpretations of the will:  (1) 1/6 to the living sister and 5/6 to the issue of the five deceased sisters; or (2) 1/6 + 1/36 to the living sister and 2/3 + 5/36 to the issue of the five deceased sisters.  How siginficant the difference would be as to any particular heir obviously depends on the net value of the estate and how many issue of the five deceased sisters there are.

 

As I mentioned above, whoever gets appointed to serve as executor should retain counsel to advise and assist, and I agree with "harrylime" that it could be necessary to obtain an interpretation and instructions from the court.  Not a good do-it-yourself project.

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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.

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Also unclear what about prior answers would prompt another post on this topic, given in past answers you asserted that given language from will was "exact" and you received responses/comments based on that info.

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I see a contradiction in your formulation.

 

In the first part, you argue that the clear intent of your uncle was to grant 1/6th of his estate to each of his then living sisters at the time the will was executed.  Which, I think, is a reasonable and viable argument.

 

However, if you accept that argument, then the 1/6th granted to the then living sister who subsequently passed away does not get combined with the 4/6ths granted to the nieces and nephews of the already deceased (at the time the will was executed) sisters to become 5/6ths shared by the nieces and nephews of the now 5 deceased sisters.

 

With CA's anti-lapse statute, the 1/6th of the then living, but now deceased, sister would transfer to that sister's descendants.  And the 4/6ths would still be shared among the 4 sisters' descendants. 

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Notes to Counsel to petition the court

 

Not sure what this means.

 

 

 

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.

 

It's worth pointing out that this is different wording than what you had previously said was the "EXACT" wording of the will.

 

In any event, this is a terribly written statement.  As discussed above, I would interpret the first part of this ("my sisters living are to receive 1/6 of my estate") to mean that whichever sisters are living at the time of death are to split 1/6 of the estate, which means that only 5/6 of the estate is accounted for.  Additionally, a gift to his "deceased sisters['] families" is ambiguous.  Who is included as part of the "families"?  The deceased sisters' spouses?  Third cousins twice removed?  The statement that "[t]his is [sic] the children of my deceased sisters" might be interpreted to clarify that "families" only means the children of the deceased spouses, but that's anything but certain.

 

 

 

The words “Other 4/6” clearly means that 2/6 have already been allocated

 

No, it doesn't.  It means that whoever drafted the will was incredibly sloppy.

 

 

 

allocated to his two living sisters, each of whom was to receive 1/6 of the estate.

 

I can't tell you that a court wouldn't ultimately adopt this interpretation because it does appear that the overall intent was to divide the estate six ways, with 1/6 going to each sister or her issue.  However, the point of what I've been telling you is that other interpretations are at least possible.

 

 

 

He most likely used this formulation to account for the possibilities that one or both of his sisters then living may predecease him.

 

This is nothing but speculation.  If he wanted to do what you think he wanted, here's one way it could have been done without ambiguity:

 

"As of the date of this will, I have two living sisters, Alice and Barbara.  I had four other sisters, Chirstine, Diana, Ethel, and Frances, all of whom are deceased.  I hereby give to each of Alice and Barbara 1/6 of my estate.  If either or both of Alice and/or Barbara predecease me, then the share of such predeceased sister shall pass to her issue on a per stirpes basis.  The remaining 4/6 of my estate should be distributed as follows:  1/6 to the issue of Christine; 1/6 to the issue of Diana; 1/6 to the issue of Ethel; and 1/6 to the issue of Frances (each on a per stirpes basis).  Any amounts not disposed of as specified above shall pass according to the intestate succession laws of the state of California."

 

 

 

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.

 

This is anything but clear.  It also raises the issue of what happens if any of the sisters children have predeceased the testator.  Does the share of any predeceased child go to that sister's other children or to the issue of the predecased child?  What if a sister has no living children but has living grandchildren?

 

 

 

Based on the words in the will, the other portion of his estate now becomes 5/6 instead of 4/6

 

No "words in the will" that you have quoted to us support this interpretation.

 

You're basically rewriting and interpreting the will in a way that gets the result you apparently want, but it's not at all clear that such result will obtain.

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