Inheritance question

cnocbui

My brother and I were joint/half owners of a property. My brother contracted a terminal illness and willed his half of the property in equal share to any children I might have at the time my son reached his 18th birthday.

My son was extant, at the time of my brothers death; I have subsequently had a daughter who was not then extant.

Now under the terms of my brothers will, both my children ought to inherit equally, however, I have heard an opinion that legislation has changed so that property can not be willed to someone who doesn't yet exist. However I also heard an opinion recently that both children should stand to inherit.

Does anyone have an opinion on what the position is?

234

Go speak to a solicitor.

Generally the will speaks from death rather than at the time of drafting. Also look into the issue of joint tenancy rather than tenancy in common as it might be possible that you own the whole of the property.

cnocbui

Thanks, I have spoken to two solicitors and got two different opinions, hence my query.

valleyoftheunos

Can't give you advice here but you seem to have some issues confused.

Firstly, legally speaking there is a difference between owning land "Jointly" and and owning it "Equally". If you owned it "jointly" with your brother then it would pass directly to you when he passed on. If you owned it "Equally" then he could pass his half in his will as he saw fit.

In the past it wasn't possible to leave something in a will to someone who isn't alive when the person passes on. That was changed by the 2009 Land and Converyancing Law Reform Act 2009. However it would be really really unusual and would have to be very specifically written that way in the will.

I think you will have to revisit a solicitor, preferably a probate expert.