A person who takes the time to execute a will does so with the general expectation that the person’s assets will be disposed of at death in accordance with the person’s wishes as set forth in the will. That’s why it is suggested that a lawyer carefully draft the language in the will to make it clear how the decedent wants their assets to pass at death. But…then there is this case.
Here, the testator’s nieces challenged the distribution of assets under their uncle’s will. The uncle properly executed his will in 2001. The will stated that the uncle’s siblings were to inherit his assets in equal shares “per stirpes.” That meant that each of his siblings would receive an equal share of his estate. That language also meant that if any of his siblings pre-deceased him, the descendants of the deceased sibling would inherit their parent’s share. That’s simple enough, and clearly expressed the decedent’s intent.
The uncle died in 2004, but one of his sister’s pre-deceased him leaving two daughters – nieces of the uncle. When the uncle’s will was admitted to probate, it was discovered that the uncle had crossed out “stirpes,” replaced it with “capita,” and initialed the change. He made this change at the time the will was executed and in the presence of witnesses. Per capita division of the assets under a will means only the named beneficiaries in a will inherit assets. Under that distributional scheme, the nieces would not receive anything – all of the assets would go to the surviving siblings equally.
The executor listed the uncle’s four surviving siblings on the probate inventory, leaving out the nieces. The nieces received notice of their omission in February 2007 and the estate was closed in May 2007. In October 2007, they filed a petition in the trial court to reopen the estate, claiming they were entitled to their mother’s portion of the estate and had not been given proper notice of the filing of the final report.
The trial court found that testator’s nieces were entitled to their mother’s share of the estate, because the Iowa anti-lapse statute (Iowa Code §633.273) rendered the distinction between “per stirpes” and “per capita” irrelevant. The anti-lapse statute specifies that a bequest is not extinguished by the death of the beneficiary prior to the death of the testator, unless the intent is explicit to the contrary. Apparently, the uncle’s specific direction that the distribution be “per capita” was not specific enough.
The uncle’s surviving siblings appealed. The appellate court noted that the uncle’s intent was to control the distribution of his estate, but then proceeded to ignore that intent. The court stated that while the uncle did change the language in the will, his intent was that his estate go to his five siblings, but if one should predecease him, that sibling’s share should go to their issue. The court simply ignored the “per capita” language in the will. They said that to override the anti-lapse statute, there must be specific intent to do so. Oh really? Well then, just what does the use of “per capita” mean – particularly where, as in this case, the use of “per capita” was substituted for “per stirpes” at the will execution conference where legal counsel was present. There is no possible way that the uncle didn’t know the impact of the change under those circumstances. In addition, how many people (other than lawyers) know anything about the anti-lapse statute?
Well, o.k., …at least now we know the reason why there is a state Supreme Court. The lesson of the case is that lawyers should opt for clear and unambiguous language when drafting wills and not rely on language that few clients understand. Perhaps the following language should have been used: “My clear and specific intent is that my siblings that survive me shall inherit an equal share of my estate. If any of my siblings pre-decease me, the share that would have otherwise passed to such sibling shall lapse and my estate shall be distributed in equal shares to my surviving siblings. In addition, no court shall ignore my intent as expressed in this will and distribute my estate in any manner other than what I have clearly indicated in this will.” In re Estate of Delmege, No. 8-492/07-2160 (Iowa Ct. App. Oct. 29, 2008).