In re Estate of Reistino, 333 S.W.3d 767 (Tex. App.—Waco 2010, no pet.).
Testator’s will established a trust for his daughter with the
remainder passing to his “nieces and nephews who shall be living * * *
per capita” upon his daughter’s death. A dispute arose as to whether
descendants of predeceased nieces and nephews were entitled to share in
the distribution.
The appellate court examined the language of the testamentary trust and
held that it was unambiguous and thus the grandnieces and nephews were
not remainder beneficiaries. Just like the term “children” does not
include grandchildren, the court held that grandnieces and grandnephews
are not included in a gift to “nieces and nephews.”
A concurring opinion made the excellent point that Testator imposed a
survivorship requirement and mandated a per capita distribution. Thus, a
niece or nephew must survive to be a beneficiary. And, Testator mandated
a per capita distribution which is inconsistent with allowing
descendants of deceased beneficiaries to be included as beneficiaries
(that is, a per stirpes or per capita with representation distribution).
Moral: To avoid confusion, testators should expressly state whether
descendants of deceased beneficiaries are or are not to be substituted
for deceased beneficiaries. Relying on phrases such as “who shall then
be living” which appear clear may lead to litigation.