In March 2016 Heather Hossack of Marblehead executed her last will and testament. She was 45 years old, single, and without children. In her will, Heather left two bank accounts to her 85-year-old mother Ethel Wyman “if she survives me.” This meant, according to the will, that Ethel must “survive [Heather] for at least ninety (90 days” in order to inherit the funds.
The residuary estate (i.e., any property not specifically devised) went to Heather’s close friend and caretaker Thomas Gibney.
In the will, Heather acknowledges that she has one sibling, her brother John Hossack, and gives him her account with Fidelity.
Heather died three years later in March 2019. Ethel failed to survive her for the required 90 days and instead passed away in April 2019.
When the will was probated a legal dispute erupted over who should receive Heather’s bank accounts. Her brother John argued that he was entitled to the money as Ethel’s sole heir. But Thomas claimed that Ethel’s right to the cash lapsed (i.e., extinguished) when she failed to survive Heather by 90 days. Thus, according to Thomas, the funds went into the “residuary estate” which belonged to him.
The key law at play in the litigation was M.G.L. c. 190B, § 2-603 commonly known as the “anti-lapse statute.”
The statute sets up a “default rule” whereby a devise (such as Heather’s bank accounts) automatically goes to a devisee’s heirs if the devisee dies before the testator (in this case Heather).
However, the anti-lapse statute is not applicable if “a contrary intention [is] shown by the terms of the will.” See M.G.L. c. 190B, § 2-601.
In this case, Thomas argued that Heather’s use of the words “if she [Ethel] survives me” was sufficient to negate the use of the anti-lapse statute.
John, on the other hand, claimed that the language was too vague regarding the disposition of the accounts in the event of Ethel’s death. Therefore, the court should apply the statute which would give him ownership of the cash.
An Essex County Probate judge sided with Thomas. John’s appeal soon followed.
The Supreme Judicial Court upheld the judge’s decision and awarded the accounts to Thomas.
In their opinion, the justices hold,
The language “if she survives me” evinces that Heather had the foresight to consider that the devisee — Wyman, her eighty-five year old mother — might predecease her and, upon such consideration, conditioned the devise upon the devisee’s survival. There 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 these circumstances, the anti-lapse statute’s presumed intention must cede to the expressed intention of the testator: that the devise fail, or lapse, if the survivorship condition is not met.
To read the full opinion, click the document below.