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Bequest Goes to Neighbor, Not Brother

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The Hossack family met with several deaths over just a few years. Heather W. Hossack died at age 48 in March 2019. Her father had died three years earlier. Her mother died after her father, but before Heather. Heather did not have children but did have a surviving brother, John A. Hossack.

Heather executed a will shortly after her father’s death which included the following provision:

I hereby make the following cash bequests:
A. The sum of an Baird accounts and any U.S. Trust accounts which I may own at the time of my death to my mother, ETHEL WYMAN, of Rockland, Maine, if she survives me.

The will gave Heather’s Fidelity accounts to her brother, John, and the remainder of her estate to her friend and neighbor, Thomas Gibney.

The Legal Issue

At issue in the case of Thomas Gibney v. John A. Hossack, et al. (Mass. S.J.C., No. 13436, April 10, 2024) is whether the words “if she survives me” trump the “anti-lapse” statute set out at M.G.L. c.190B, §2-603, which is meant to keep inheritances in the family if an heir dies before the person whose will is being probated. It dictates that if someone receiving an inheritance under a will who is “a lineal descendant of a grandparent is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee.”

In this case, Wyman is a a descendant of Heather’s grandparent (Wyman’s parents). John, therefore, argues that as her son he should receive the Baird and U.S. Trust accounts. Gibney, on the other hand, argues that he should inherit these accounts because of Heather’s proviso that her mother receive them only “if she survives me.”

The Court’s Reasoning

In resolving this apparent conflict between the will provision and the anti-lapse statute, the Massachusetts Supreme Judicial Court turns to M.G.L. c.190B, §2-601, which precedes the anti-lapse statute. It states that it and other “rules of construction” in the law will control the interpretation of wills “[i]n the absence of a finding of a contrary intention shown by the terms of the will.”

The Court explains that the anti-lapse statute presumes that if an heir (“devisee”) were to predecease the testator, the testator would want the inheritance to go to the heir’s descendants. “As such, the anti-lapse statute fills in the testator’s missing intent with a presumption against disinheritance of certain lineal descendants, allowing the devisee’s living issue to take in the devisee’s stead.”

But in this case, Heather did contemplate that her mother, who was 85 years old when she executed her will, might predecease her and “conditioned the devise upon the [her] survival.” Therefore, “[t]here is no need to substitute a judgment (in the form of the rule of construction embodied in the anti-lapse statute) as to what the testator might have done if she had considered the issue; Heather contemplated the eventuality and provided for it expressly in the will.”

In fact, in reviewing the legislative history of the anti-lapse statute, the Court finds that in adopting the Uniform Probate Code the Massachusetts legislature chose to leave out a provision that clearly states that words concerning survivorship do not prevent application of the anti-lapse protections for family members.

Conclusion

We really don’t know what Heather wanted, that the accounts go to her brother, John, or her friend, Gibney. The case demonstrates the need for individuals writing wills to think through who should receive inheritances if an heir predeceases them, and for attorneys to discuss these possibilities with their clients. These issues often become more pertinent requiring their exploration when the client is childless, since the natural disposition to children and grandchildren is not available.

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