I RECENTLY HAD an experience with the use of disclaimer that may be of interest. A deceased hypothetical testator made four $1,000 pecuniary gifts to grandchildren. The will contained a residuary clause that left the remainder of the estate to the testator’s son (her only child). It occurred to me that if the grandchildren disclaimed their interest in the estate, their father could petition for the waiver of full administration pursuant to RSA 554:1-a. Section IV of the statute expressly states that disclaimer may be effectively used to cause the estate to qualify for the use of waiver. The Petition for Estate Administration and the disclaimers were filed.

Instead of the appointment, I received an order for a bond, and a request for an amended AU-101asking for a list of all issue of the disclaiming legatees. Did I miss something? A call to the Probate Court illuminated me. Due to the way the will was worded, the judge believed that the anti-lapse statute (RSA 351:12) would pass the disclaiming legatees’ shares to their heirs. This was not what I had in mind.

I understood that if a testamentary instrument has not provided for another disposition of the property, the interest devolves as if the disclaimant had predeceased the testator (RSA 563-B:4). Isn’t the residuary clause just such a provision for another disposition of the property interest?  I thought so, but the judge and I politely disagreed with each other. I was permitted to withdraw the disclaimers in the interest of justice. As much as my hypothetical speaks to statutory interpretation, it speaks even louder about drafting. In my example, how can we glean the intention of the testator in the absence of express testamentary statements?  The drafter could have stated that the bequests were to be made "per capita," thereby creating a pool of funds to be shared by a class of surviving members. The drafter could have chosen "per stirpes," thereby indicating that a class member’s share should pass to their issue if they predecease the testator. The drafter also could have indicated that the bequest was to those who survived the testatrix and, in the event they predeceased her, that their bequest would pass through the residuary clause. Any of the express statements of intention would permit a clear understanding of how disclaimer would affect the distribution scheme because there would be alternative dispositive provisions.

There are lots of wills out there that predate the existence of Waiver of Administration and disclaimer. If you decide to take advantage of the use of disclaimer, make sure that the anti-lapse statute doesn’t produce a surprise result.

Bruce N. Finkle is a sole practitioner in Nashua. He concentrates his practice on estate planning, business law and real estate law.

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