Query re Will

MissCatherine

I hope my query is not regarded as seeking legal advice, if it is I apologise and Mod's please lock this thread.

My query is this- a person has been left money in a will but they have died so does the money go to their next of kin or go into the 'pot' for general distribution among everyone?

I suspect it does in fact go to their next of kin but can anyone confirm or deny this?

Thanks

Tom Young

Can you use the search function on the forum as this comes up a lot.

There are two types of scenario: Testate succession - With a will - detailing the wishes of the deceased; and Intestate succession - without a will - which sees the estate of the deceased distributed through stirpes or the concept of next of (relevant) kin distribution.

Use the search function. Try: Wills, Testate etc. I think I've gone into detail on it, as has johnnyskelton and others.

Thanks,

Tom

dats_right

MissCatherine wrote: »

My query is this- a person has been left money in a will but they have died so does the money go to their next of kin or go into the 'pot' for general distribution among everyone?

I suspect it does in fact go to their next of kin but can anyone confirm or deny this?

Thanks

You suspect wrong. In a testate situation i.e. where there is a will, the general rule is that where a beneficiary predeceases the testator the gift lapses and falls into the residue of the estate, per section 91 of the Succession Act. This essentially means that, unless there is an effective 'gift-over clause' or section 98 applies then the bequest fails and as you so succinctly put it; it goes into the 'pot'" for distribution amongst the residuary legatees, which incidentally isn't necessarily everyone.

Section 98 is often misinterpreted and can be difficult to understand but it is first and foremost an exception to the general rule. It applies only in circumstances where a child predeceases the testator leaving issue (not just children but issue e.g grandchildren) and such issue are living at the time of the death of the testator, the gift shall not lapse but shall take effect as if the death of that person has happened immediately after the death of the testator. In virtually all other circumstances the gift will fail and will revert to the residue.

A practical example might be:

If Paddy dies a widow, tesatate (i.e. with a will) and with 2 of his 3 children surviving him (as Bill has predeceased his father surviving him was his wife Maura and two children- his universal legatee being his wife). Paddy's Will purports to leave "his whole estate of every kind and nature and wheresoever situate to his three sons in equal shares", then provided Bill has issue i.e. children or grandchildren alive at the date of death of Paddy, then section 98 applies and will take effect as if Bill had survived his father and Bill's estate will be entitled to his 1/3 share of Paddy's estate.

Now, this is the part that really catches people out, a lot of people assume that such a gift will then pass directly to Bill's children but this is not so. In actual fact as Maura (Bill's wife) was his universal legatee i.e she was left her husband's entire estate (as is very common) she inherits the entire 1/3 share of Paddy's estate that Bill would have been entitled, which is in many cases not intended and is why a good appreciation of section 98 is so important.

A gift over clause is a simple device used to provide for the sitaution where a beneficiary predeceases the testator e.g If in the above example Paddy's will contained the following clause: " In the event that any of my children predeceasing me leaving a child or children then in that event I give, devise and bequeth the share of that predeceased child to the children of such child
on reaching the age of 18 and if more than one in equal shares for his, her or their benefit absolutely", it would have meant that rather than the Paddy's daughter in law, Maure inheriting Bill's share of the estate that Bill's children would be entitled to that share.

As Tom Young says different rules apply in the event of intestacy.

Jo King

MissCatherine wrote: »

I hope my query is not regarded as seeking legal advice, if it is I apologise and Mod's please lock this thread.

My query is this- a person has been left money in a will but they have died so does the money go to their next of kin or go into the 'pot' for general distribution among everyone?

I suspect it does in fact go to their next of kin but can anyone confirm or deny this?

Thanks

The key question is when did the person who was left the money die? If they died after the testator and were waiting for payment the money would go into their estate. If they died before the testator the situation is different as described above.

dats_right

Jo King wrote: »

If they died after the testator and were waiting for payment the money would go into their estate.

Absolutely right and I should have said as much in my last and rather long winded post!

MissCatherine

Hi Guys,

Thanks for the replies, I researched the area but still came up with the same conclusion i.e. that the money goes to the next of kin. I came across a principle called 'Per Stirpes' and thought that this issue applied to it.

I am not arguing with the professionals and so if you say is it supposed to revert to the estate that I believe 'ya I obviously need to look at my research again.

Incidentally, the person supposed to inherit the money died around 6 years ago but his cousin (who recently died and left him the money in question in her own will) never changed her will - hence the confusion now