## Facts

- Mrs. Lee executed a will establishing a testamentary trust, naming Seattle-First National Bank as trustee.
- The will’s **fourth clause** gave Mrs. Lee’s son, **Fairman Burbidge Lee**, a life interest; the parties agreed this clause was valid.
- The will’s **fifth and sixth clauses** attempted to dispose of property after Fairman’s death to Mrs. Lee’s grandchildren (and, in some circumstances, great-grandchildren), and contemplated continuing the trust until all grandchildren reached age 40 or died.
- The parties agreed the fifth and sixth clauses were **void under the Rule Against Perpetuities (RAP)**.
- Anticipating a possible RAP problem, the will’s **eighth clause** stated that if any portion of the will was held invalid because of the RAP, the trust would continue **“for as long as legally permitted,”** and **on the day before the trust would terminate by law** the trustee would distribute the trust estate to those persons named in the will **“who would be entitled to take distribution thereon upon termination of the trust.”**
- The will’s **tenth clause** provided that if any part of the will was determined to be invalid, that determination would **not affect the remaining provisions**.
- In probate, Fairman (and others aligned with him) argued that the eighth clause failed because it did not identify the distributees with enough certainty; they contended that if the gifts over were void, Mrs. Lee died intestate as to the trust remainder and the property should pass to Fairman as her only heir.
- The probate court rejected the indefiniteness argument, construed the will to give effect to the eighth and tenth clauses, and directed administration of the trust within the time allowed by law; the objectors appealed.

## Issues

1. Whether the will’s RAP savings clause (eighth clause), directing the trust to continue “as long as legally permitted” and to distribute on the day before legal termination to persons named in the will who would then be entitled to take, is sufficiently definite to be enforceable.  
2. If the savings clause is not enforceable, whether the trust remainder passes by intestacy to Fairman Lee as the testatrix’s sole heir.

## Decision

- The Washington Supreme Court **affirmed** the probate court’s construction of the will.  
- The court held that the **eighth clause was enforceable** and not void for indefiniteness; the persons to take on distribution could be determined by reading the will as a whole and applying the distribution direction at the legally required termination point.  
- The court gave effect to the will’s expressed intent that the trust operate **only within the period the law allows**, with distribution required immediately before the trust would be forced to end by operation of law.  
- Because the eighth (and tenth) clause supplied a workable disposition after excising the conceded RAP-violating provisions, the court rejected the claim of **partial intestacy** as to the trust corpus.

## Legal Principles

- A will is construed **as a whole**, with the aim of carrying out the testator’s intent when the language permits a reasonable construction that leaves valid provisions in effect.  
- A court may give effect to a **RAP savings clause** that limits a trust’s duration to the maximum time allowed by law and requires distribution at the point just before the law would compel termination.  
- A gift is not void for uncertainty if the beneficiaries are **ascertainable by objective reference** to the instrument and the time for determining takers is fixed by a lawful termination point.  
- A **severability clause** supports enforcing the remainder of a testamentary plan even when some provisions are invalid, rather than treating the entire disposition as failed.  
- Courts generally avoid a construction resulting in **intestacy** when the will supplies an alternative method for distributing the property consistent with the testator’s expressed plan.

## Conclusion

In *In re Estate of Lee*, the Washington Supreme Court enforced the will’s RAP savings and severability provisions after the parties conceded that certain gifts over violated the Rule Against Perpetuities. Reading the will as a whole, the court held the eighth clause sufficiently definite to direct distribution of the trust property at the latest lawful termination point to those beneficiaries identified by the will who would then be entitled to take, thereby preventing the remainder from passing by intestacy to the testatrix’s heir.


In re Estate of Lee, 299 P.2d 1066 (1956)