Will question - dividing amongs siblings

nowyeretalkin

Hi, my wife and I are doing a will each with the same provision - to divide our estate equally amongst our siblings - 4 brothers and sisters 25% each. My understanding is that if one of our siblings predeceased us (and we hadn't changed the will) is that that siblings kids would inherit that share. But what if that sibling had no kids - would that share go equally to the remaining 3 siblings or to the "nearest relative" of that sibling.

Hope that makes sense!

Gamrab1974

No - The situation you describe would only happen on an intestacy, ie no will at all.

If you make a will S. 91 of the Succession Act provides that:

Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, ..........., shall be included in any residuary devise or bequest, as the case may be, contained in the will.

So if a sibling pre-deceases you their share will go under the residuary clause in the will, and if there is no residuary clause under the rules of intestacy.

The easiest way to deal with it, is to specify in your will what you want to happen to a sibling's share if they:-

1. Do not survive you leaving issue.
2. Do not survive you leaving no issue.

nowyeretalkin

Thanks Gamrab.

Just to clarify -so if there is no residuary clause and a sibling died then that would be dealt with under the rules of intestacy - and in that case would it go to their nearest relative if they had no kids or be divided amongst the other 3 siblings?

Though I take your point that I should specify things as you suggested.

Gamrab1974

If there is no residuary clause the 25% share would be split 4 ways. A quarter share for each of the remaining siblings, and the remaining quarter share amongst any issue of the pre-deceased sibiling. If there are no such issue, then the 25% share is split 3 ways.

So the surviving sibilings would get their 25% share from the will and a further share of the lapsed 25% share of the pre-deceased sibling, which would either be a quarter or a third of that 25% share.

nowyeretalkin

Thanks Gamrab.