In re Estate of Reistino, 333 S.W.3d 767 (Tex. App.—Waco 2010, no pet.).


Construction and Interpretation

“Nieces and Nephews”


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.