Construing Eleanor’s Will

Eleanor was one of six children. She was never married and never had any children. Eleanor’s will divided her Estate into eight shares. Four shares were left to her surviving brothers and sister. One share was left to a sister-in-law, who had been married to Eleanor’s brother who died. The remaining three shares were divided equally among fourteen nieces and nephews of all of Eleanor’s siblings. There was no residuary clause.

Eleanor was confined to a nursing home because of physical problems. On one particular day (it was alleged), one of the nurses caring for her put the wrong substance into Eleanor’s intravenous bag. Eleanor had a seizure, was rushed to the hospital, and spent the next five years in a coma. She never regained consciousness before her death. One of her surviving brothers, William, Sr., and her brother-in-law John were appointed as Eleanor’s Co-Guardians, and they pursued the malpractice suit against the nursing home. In her will, Eleanor named one of her nephews, William, Jr., as Executor of her Estate, and when Eleanor died, he was appointed.

The Estate then faced a problem. During the time Eleanor was in her coma, three of her other siblings had died, including John’s wife. The will did not say what would happen to a sibling’s share if the sibling died before Eleanor. The anti-lapse provisions of the Probate Act direct that bequests descend per stirpes but only to descendants, not to siblings and their descendants (collaterals). Two contradictory outcomes seemed possible. A Court might decide that if a share lapsed, that share would be divided equally among the remaining shares. That interpretation would eliminate all of Eleanor’s other in-laws, including John, the Co-Guardian. A Court might decided instead that in the absence of a residuary clause, a lapsed share would pass by intestacy. That would mean that the share would be divided among all of Eleanor’s nieces and nephews except those who were children of William, Sr., since he and not his children would be Eleanor’s “heir.”

Looking at the will, however, a third possibility suggested itself. Eleanor had provided in her will for one spouse of a deceased sibling. It was likely that she would have wanted to provide similarly for her other in-laws. I met with William, Jr., and asked him what he thought his aunt would have wanted. He said that Aunt Eleanor certainly would have wanted the other in-laws to take their deceased spouses’ shares.

I prepared for the legatees a long explanation of the situation and laid out the two most likely results of a will construction action. I explained that three-eighths of the Estate could not be distributed until the issue was resolved. I explained that the proceeding would be cumbersome and would cost several thousand dollars in attorney fees. I then laid out the third alternative that William, Jr., and I had discussed. I stated that William, Jr., thought Eleanor would have wanted that result. I sent with the explanation two opposing “directions” to the Estate. One agreed with the third alternative and one did not. I told the remaining legatees to sign one or the other and return it to me. I also told them that only if they were unanimous could we avoid a will construction action.

I sent out sixteen consents (to William, Sr., the one named sister-in-law, and the fourteen nieces and nephews). I received back sixteen consents to the third alternative. The result was almost certainly what Eleanor would have wanted. It was especially important to John, who had put much time and energy into acting as Eleanor’s Co-Guardian.

Closing observations: First, amidst all of the Estate contests and litigation, you sometimes find families that do what is necessary to resolve difficult situations, even where it may cost them money or assets. Second, by settling this kind of situation, an attorney can be a hero and save the Estate substantial fees. So much in the practice of law is in shades of grey. It feels good to once in a while guide a case to a result that you know is “right.”

© 1999 by Cary A. Lind, all rights reserved