Estate of Rehwinkel


Procedure: Son of devisee who predeceased testator filed petition for order declaring him an heir of testator.

Facts: The decedent left a will providing that the residue of his estate should be shared between several named relatives. The Petitioner’s mother was one of the named relatives and she died one month prior to the decedent. Petitioner seeks application of the anti-lapse statute to enable him to share in the estate.

Issue: Was Fossum (P) entitled to his mother's share of the estate, when she predeceased the testator?

Holding: The Superior Court, Snohomish County, James Allendoerfer, J., entered summary judgment in favor of testator's estate, and plaintiff appealed. The Court of Appeals held that testator clearly manifested his intent that antilapse statute was not to apply by making bequest only to those relatives who survived him.
Affirmed.

Rule:The anti-lapse statute will not apply if the testator has used words of survivorship that state that a devisee will receive the gift only if he or she survives the testator.

Analysis: The case rejected by the court here as persuasive authority, Detzel v. Nieberding, stated that an alternative disposition would be required in order to avoid application of the anti-lapse statute. Earlier, however, the court cites with approval In re Estate of Button, as holding that the statute will not apply in the event of an alternative disposition. The distinction between the two seems to rest upon whether the alternative disposition is required in order to avoid the statute, or whether it is merely evidence of intent to avoid it.