Wills and Inheritance.

Gergiev

My memory needs a little jogging here.


(1). In the event of a brother leaving a bequest to a sister who is named and subsequently predeceases the brother, does the inheritance then go automatically to her children?

Eg, X leaves bequest to A, B & C but C is already dead with 2 children living.

Is the C portion then automatically divided between the 2 children?


(2). And if C had already made a will excluding one of the children then does this pertain also in this case?

Eg, C left all her estate at time of death to Child P and disinherited Child Q.

Does this mean any subsequent inheritance coming down the same line is transferred to directly to P or are later inheritances divided (per stirpes) between P and Q?


Any feedback appreciated.

theo2008

From what I can recall,, I would say no. A will is ambulatory, i.e. it has no legal effect until the testator dies. Therefore, if the person named in the will predeceases the testator, the gift lapses automatically and completely. No legal action is needed. Therefore, nothing will transfer to the sister and so, nothing will transfer to her children.

If the sister had not pre-deceased her brother and the gift transferred to her in the normal way, the child excluded from her will would have no legal right to that gift.

It is perfectly acceptable for a parent to exclude a child in a will in relation to any or all of a parent's estate. Children have no positive legal rights to a parent's estate. However, they can apply for a share under s. 117 of the Succession Act 1965 arguing that the parent failed in his/her moral duty to provide for them but this is very much left to judicial discretion and is dependent upon the facts of each case.

The last question-

"Does this mean any subsequent inheritance coming down the same line is transferred to directly to P or are later inheritances divided (per stirpes) between P and Q?" -

As I said, a parent can legally specifically exclude a child in a will.

However, if after a parent dies and the children remain living and inheritances fall due to the parent due to Intestacy (relations that had not made a will and whose estate is divided equally according to next of kin), because that parent has deceased, the gift will move on to the children and that inheritance will fall due to both children, per stirpes. (The parent's will would be irrelevant).

I hope that makes sense to you. I'm quite confident that that is the legal position.

Gergiev

Theo, thanks for the reply, that's very interesting.


Do you happen to know in that case what happens to the share allocated to the pre-deceased person C?

Does this mean the portion allocated to C is then divided between A and B in the proportion of their original allocation?

Even if A was left property but B and C were left cash.


Any other opinions?

theo2008

From first principles, if a gift lapses in such a case where the intended beneficiary pre-deceases the testator, the gift will revert back to the testator's estate and fall due to the residual beneficiary, i.e. "I leave the remainder of my estate to Joe Bloggs", the gift would be part of that remainder.

The residual beneficiary may or may not be A and/or B but they would have no legal claim on it otherwise.

Gergiev

theo2008 wrote: »

From first principles, if a gift lapses in such a case where the intended beneficiary pre-deceases the testator, the gift will revert back to the testator's estate and fall due to the residual beneficiary, i.e. "I leave the remainder of my estate to Joe Bloggs", the gift would be part of that remainder.

The residual beneficiary may or may not be A and/or B but they would have no legal claim on it otherwise.

Theo, just to complicate matters, the residual beneficiary is the afore-mentioned and pre-deceased Person C!

A was left the property and B most of the cash.

(There are some other smaller benificiaries as well but A and B are the most substantial ones.)

Thanks for your help so far.