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AVOIDING AMBIGUITY IN A WILL AND APPLICATION OF THE ANTI LAPSE STATUTE

An anti-lapse statute is a rule of interpretation that is intended to cure a will to ensure that the next individual in line of a pre-deceased child or certain other close relatives receive testator’s devise or bequest.  20 Pa. C.S. § 2514(9).  Specifically, the Pennsylvania anti-lapse statute states that “[A] devise or bequest to a child or other issue of the testator …shall not lapse if the beneficiary shall fail to survive the testator and shall leave issue surviving the testator but shall pass to such surviving issue who shall take per stirpes the share which their deceased ancestor would have taken had he survived the testator….”  20 Pa. C.S. § 2514(9).

When does the anti-lapse statue apply to a will when the testator included language that two children should “share and share alike” and one of children predeceased the testator?  In a case of first impression at the appellate level, the Superior Court recently provided guidance on this matter in In re Estate of Harper, — A.2d —-, 2009 WL 1510255 (Pa.Super.), 2009 PA Super 104.

In Estate of Harper, Testator’s will stated as follows:

SECOND: I give, devise and bequeath all the rest, residue and remainder of my estate to my wife…

THIRD: In the event my wife, FLORENCE J. HARPER, fails to survive me, then I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and nature and wheresoever the same may be situate, of which I shall die seized and possessed, or to which at the time of my death I may be entitled, to my son, SAMUEL CARL HARPER and to my son, WILLIAM D. HARPER, share and share alike.

In Estate of Harper, Testator’s wife and son William predeceased him by five years, and the surviving son and currently serving Personal Representative (Executor) of the Estate claimed that he, as the surviving beneficiary of Testator, was entitled to the entire residue of Testator’s Estate, because the phrase “share and share alike” denotes a per capita, or individual, distribution, and necessarily negates any right of representation.

At the trial level, the Orphans’ Court noted that the phrase “share and share alike” “is standard language.  And the Orphans’ Court observed, “these are words that have been used in wills for hundreds of years.” Superior Court citing Notes of testimony, 5/29/07 at 10.

The Superior Court noted that it failed to see how the language “share and share alike” intended to void the anti-lapse statute.  For example, “while the testator provided for the possibility that his wife might predecease him, he did not use any survivorship language in the residuary clause such as “provided this person is living at my death” or “if this person does not survive me” with regard to the two sons.”   Also, the Superior Court noted that “the testator had almost five years after the death of his son to revise the Will if he did not want his son’s share to pass through.”

Ultimately, the Superior Court found that Appellant’s interpretation of the words “share and share alike” to be unreasonable and insufficient, “standing alone, to overcome the statutory presumption against lapsed bequests” because to hold otherwise then “the anti-lapse statute would be effectively eviscerated.”

As a related matter, the Superior Court held that the Orphans’ Court correctly declined to hear extrinsic evidence of an alleged ambiguity in testator’s will, relating to the beneficiary who would now receive the property as a result of the anti-lapse statue.

Individuals engaged in estate planning on behalf of clients need to make clear to their clients that if the client wants their assets to pass to the surviving co-beneficiaries that the will must include language to that effect; otherwise, the anti-lapse statute may be applied and instead of the client’s remaining beneficiaries inheriting the property, it might pass, to issue of the deceased beneficiary.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C.

This article was originally published in Upon Further Review” on August 7, 2009, and can be seen here.

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