Gibney v. Hossack

230 N.E.3d 1009 (2024)

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Gibney v. Hossack

Massachusetts Supreme Judicial Court
230 N.E.3d 1009 (2024)

  • Written by Angela Patrick, JD

Facts

Heather Hossack used an attorney to prepare a will that left (1) her real estate to her long-term partner, (2) two valuable investment accounts to her mother, Ethel Wyman, (3) another investment account to her brother, John Hossack (defendant), and (4) the residuary of her estate to her close friend Thomas Gibney (plaintiff). The gifts to Heather’s partner and Gibney were designated “per stirpes,” meaning that their descendants would receive the gifts if either beneficiary died before Heather. In contrast, the will gave the investment accounts to Heather’s mother “if she survives me” and to John “if he survives me,” without using “per stirpes” or similar language. Heather’s attorney told her this survivorship language meant that if her mother died first, her mother’s accounts would become part of the residuary and pass to Gibney. Heather died three years later, after her mother. John argued that the state’s antilapse statute applied and redirected the mother’s gift to her only living descendant: him. Gibney filed a complaint asking for a court ruling that the words “if she survives me” showed that Heather had intended for her mother’s gift to lapse into the residuary if her mother died first. The trial court granted judgment for Gibney, ruling that Heather’s use of survivorship words had overridden the antilapse statute and, therefore, that the gift lapsed to the estate’s residuary. John appealed to the state’s highest court.

Rule of Law

Issue

Holding and Reasoning (Wendlandt, J.)

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Casebooks

Wills, Trusts, and Estates

Key Terms

  • Testator/TestatrixA decedent who dies testate, i.e., with a will. A female testator may be referred to as a testatrix.
  • Residuary EstateThe remaining portion of a testate decedent’s estate that has not been devised through specific bequests in the will.
  • Lapsed giftA devise or bequest in a will that fails because the intended beneficiary predeceased the testator, the gift was void or a condition precedent was not met.
  • Per StirpesLatin for by roots or shoots, as of a tree; a form of distribution of an estate in which each recipient takes a share according to the proportion that would have fallen to his deceased ancestor. Contrast with per capita distribution, which divides shares equally by number of individuals.
  • Antilapse statuteA state statute that prevents lapse of a gift, which would otherwise fail because the intended beneficiary predeceased the testator, the gift was void or a condition precedent was not met, by establishing an alternative beneficiary.
  • Residuary BeneficiaryThe beneficiary who receives a testator’s residuary estate, also called a residual beneficiary.
  • Residuary DeviseA testamentary gift of whatever probate assets are not otherwise devised in specific, general, or demonstrative devises, and may include property acquired by the testator after the execution of the will. Also called a residuary bequest, there can be multiple residuary devises distributing the total residuary estate.

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