The Elder Law Forum

The Elder Law Forum
I have a "longevity" wager with a law school colleague. He is 67. I am 69. If he predeceases me, I will receive his collection of neckties, some of which were acquired in the 1950s and 60s. Several are the knit-type that are of an appropriate width, unlike the napkin-width of today's knit ties. You might recall how good they looked on a 28-year-old Paul Newman.

If I predecease him, he receives my S-500 Mercedes Benz, with a 350-horsepower engine that is expected to clock some 500,000 miles, most of them to be logged on the 25-mile stretch of country hardtop between my home and the law school.

We have stipulated that by the time one of us is laid to rest, the value of the neckties and the Mercedes will be about the same. We both like fast cars and conservative neckties. He chose neckties. I chose fast cars. In the end, one of us will have both.

To make this wager legally enforceable, however, each of must include in our respective wills a specific bequest that keeps the neckties and Mercedes out of our residuary estates. A "residuary estate," in the law of wills, is any portion of an estate that was not specifically devised to someone in the will.

This issue was the subject of a call this week to the USD Senior Legal Helpline. "My husband and his brother were identified in their mother's will as the family members who would ?share-and-share-alike' in a parcel of farmland," said the caller. "She recently died. But my husband's brother died three years ago.

"Now the executor of the estate � my deceased mother-in-law's brother � says he is entitled to half of the land because it is part of the residuary estate that he is to inherit. And, the lawyer for the estate says he is right! Is he?"

"He probably is," I advised, informing her I would have to look at the language to be certain. Had the deceased brother left children, they would have taken his share under intestate succession. But he died single, without children.

At common law, if the residuary estate was divided between two or more beneficiaries, and one was unable to take because of death, that share passed by intestacy, under the doctrine that "there was no residuary of a residuary."

The modern rule, however, is that the failure of a residuary to one beneficiary causes that share to be divided among the designated residuary taker, which in this case is the brother of the deceased, not the caller's husband.

(Pro bono legal information and assistance is available to persons 55 and older at USD Senior Legal Helpline, 1-800-747-1895; mmyers@usd.edu).

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