Case Law Update: Per Stirpes
The testator gave his tangible person property and his residuary estate to his “eight (8) children, per stirpes.” In the case of the tangibles distribution was to be made “as and in the manner my Executor, in his or her sole discretion, determines to be reasonable” and in the case of the residue distribution was to be made “at the discretion of my executor.” The executrix, one of the decedent’s daughters, distributed all of testator’s interest in an annuity to herself. Another daughter sought construction of the will.
In Steward v. Ray, No. S11A0777, 2011 WL 4008297 (Ga. Sept. 12, 2011), the Georgia Supreme Court affirmed the lower court, holding that under established precedent, a gift to a class “per stirpes” means that the class members are the heads of the stirpes who take per capita. The discretion given the executor extends only to dividing non-fungible items equally.
Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for sending me this case law update.