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Estate of Rehwinkel

    Brief Fact Summary. 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.

    Synopsis of Rule of Law. The anti-lapse statute is presumed to apply unless there is evidence of the testator’s clear intention that it not.

    Facts. In 1968 Leo Rehwinkel executed his last will and testament. It provided that the residue of his estate would be given “to those of the following who are living at the time of my death, share and share alike: . . ..” Rehwinkel died in 1991 and his niece, Helen Anderson, one of the named beneficiaries in the residuary clause had died one month earlier. Ronald Fossum, Anderson’s son, filed a petition for an order declaring him an heir of Rehwinkel arguing that the anti-lapse statute applied and he was therefore entitled to take the share his mother would have received. The trial court dismissed Petitioner’s petition and he now appeals.

    Issue. Does the state’s anti-lapse statute apply when the will reads “to those of the following who are living at the time of my death”?

    Held. No. Affirmed. The Court will not apply the anti-lapse statute when it is clear from the language of the will that the testator’s intention was that is not apply.

    Discussion. The anti-lapse statute reflects public policy that when a testator fails to provide for the possibility that his beneficiary will predecease him the lineal descendants of the beneficiary take his or her share. The Court notes that there is a presumption in favor of the application of the anti-lapse statute. However a clear intent of the part of the testator is clear to preclude its application will defeat this presumption. The Court finds the language “living at the time of my death” to be evidence of such clear intention.


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