Use of the word "Absolutely" in relation to a will..

HellFireClub

Hi Folks,

Not looking for legal advice, but wondering could someone help me settle a difference of opinion here that I'm having with a work colleague...

If a person constructs a will, and uses a phrase something along the lines of: "I leave all my property, to my two sons, John and Jimmy, for their sole use and benefit absolutely"...

Is the proper and well understood meaning of this word "absolutely", in the legal sense, taken to mean that if John & Jimmy were both married to their respective partners, and say for example John dies before Jimmy, or Jimmy were to die before John, in either event, the outcome of the use of the word "absolutely" in the will, means that the estate passes in its entirety, to the other remaining brother upon the death of one of them, and that a spouse of either brother, cannot inherit his share, in the event of his death???

Victor

HellFireClub wrote: »

Hi Folks,

Not looking for legal advice,

See charter before a mod gets here.

but wondering could someone help me settle a difference of opinion here that I'm having with a work colleague...

If a person constructs a will, and uses a phrase something along the lines of: "I leave all my property, to my two sons, John and Jimmy, for their sole use and benefit absolutely"...

I think the word being sought is 'exclusively'. Saying 'absolutely', while expressing some intention, is ambiguous.

Is the proper and well understood meaning of this word "absolutely", in the legal sense, taken to mean that if John & Jimmy were both married to their respective partners, and say for example John dies before Jimmy, or Jimmy were to die before John, in either event, the outcome of the use of the word "absolutely" in the will, means that the estate passes in its entirety, to the other remaining brother upon the death of one of them, and that a spouse of either brother, cannot inherit his share, in the event of his death???

Succession Act says otherwise.

wobbles

Cant see how it would matter what that person says in their will. If they leave it to John and Jimmy, it becomes John and Jimmys property. It should be whatever is in their will that makes the difference

seamus

It's better to be clear rather than try to use fancy language. So, "all property is left to Jimmy and John, or if either son is deceased, the living son shall inherit all property."

To the best of my knowledge there is no way for a will to place conditions of ownership on a property - once it has been willed into someone's possession, it is theirs to will onto someone else as they wish. Or in the absence of a will, the property passes into possession of their inheritors.

To get around this, the property can be placed in trust (i.e. in control of a third party) until one of the sons has died, in which case the trust signs the property over to the surviving son.

It's a very specific and cynical requirement, so really only a solicitor could advise as to the correct way to go about it.

Pawwed Rig

I have seen it used in a context of limited interests where (say) a house may be left to mother for life and to brother absolutely ie Mother can live in it as long as she lives but has no say in where it goes after death as the dear departed has already stipulated it goes to bother.

im invisible

Oh, absolutely!

HellFireClub

Victor wrote: »

See charter before a mod gets here.

I've already said that I'm NOT looking for legal advice, this topic developed in conversation today over lunch with a lad I work with, he reckons that where you use the word "absolutely" in your will, you are basically able to ensure that a spouse of someone you name as a beneficiary in your will, cannot inherit their gift if they die before any other beneficiary.

I on the otherhand, had never heard of this and always assumed that where someone who is a beneficiary in a will, dies, their gift in the will can be inherited by their own surviving partner or whoever would benefit in the case of an intestacy.

chops018

HellFireClub wrote: »

I've already said that I'm NOT looking for legal advice, this topic developed in conversation today over lunch with a lad I work with, he reckons that where you use the word "absolutely" in your will, you are basically able to ensure that a spouse of someone you name as a beneficiary in your will, cannot inherit their gift if they die before any other beneficiary.

I on the otherhand, had never heard of this and always assumed that where someone who is a beneficiary in a will, dies, their gift in the will can be inherited by their own surviving partner or whoever would benefit in the case of an intestacy.

You are right, as far as I know that is. If someone leaves a gift to someone in a will and they inherit such then that passes to them and then they can either put it down as a gift for someone in their own will or if they die intestate then the gift will be part of the deceased estate and will be given out according to the rules of intestacy.

It is interesting though, as the original testator can make an express trust in the will: so they can say: 'to John for the benefit of Tom when he comes of age'. Then John will hold the gift on an express trust for Tom. A testator may also make hopes in the will that they hope or desire that the gift is given to such a person or will be used in such a way or done for such a purpose, but the court never gives heed to such as they feel that if the testator wanted such to be done they would have expressly stated it and so the gift will be bequeathed to that beneficiary to do whatever they want with it.

Thoie

chops018 wrote: »

It is interesting though, as the original testator can make an express trust in the will: so they can say: 'to John for the benefit of Tom when he comes of age'. Then John will hold the gift on an express trust for Tom.

If I'm John, and the inheritance is money or a house, can I spend the money/sell the house before Tom comes of age, or does the gift have to remain intact for Tom?

Pawwed Rig

It would depend on the terms of the will/trust

qz

Does "sole use and benefit absolutely" not mean that the person can do whatever the hell they want with it? Be it use it, sell it or transfer it?

Victor

HellFireClub wrote: »

I've already said that I'm NOT looking for legal advice,

Apologies, I misread it.

annieoburns

Does the use of this term preclude the share to a child going directly to the offsping of this person should he die before his parent? In a couple of wills I have seen, the child's share goes to the grandchilren rather than the spouse should the child die before its parent. Does this have to be specifically mentioned?

littlemac1980

HellFireClub wrote: »

Hi Folks,

Not looking for legal advice, but wondering could someone help me settle a difference of opinion here that I'm having with a work colleague...

If a person constructs a will, and uses a phrase something along the lines of: "I leave all my property, to my two sons, John and Jimmy, for their sole use and benefit absolutely"...

Is the proper and well understood meaning of this word "absolutely", in the legal sense, taken to mean that if John & Jimmy were both married to their respective partners, and say for example John dies before Jimmy, or Jimmy were to die before John, in either event, the outcome of the use of the word "absolutely" in the will, means that the estate passes in its entirety, to the other remaining brother upon the death of one of them, and that a spouse of either brother, cannot inherit his share, in the event of his death???

It simply means the entire legal and equitable interest of the property (as opposed to just the legal interest, or some equitable interest).

A fee-simple is an absolute interest.

It has nothing to do with co-ownership which if it arises, is dealt with by presumptions and other legal rules.

nuac

It is bad for the digestion to discuss such topics during lunch.

Lawyers usually use lunches for legal gossip and off-colour stories