Am I right about this when a sibling dies before the testator?

Spanish Eyes · 08-10-2013 10:47PM #1

Hi all.

Sadly, my sister passed away last year. My mothers will states that her entire estate is to be divided equally amongst all her children. I am one of the executors.

My sister and brother believe that my deceased sisters share will pass to her husband. They had no children.

I think it won't.

Who is right?

camphor · 08-10-2013 11:25PM

Spanish Eyes wrote: »

Hi all.

Sadly, my sister passed away last year. My mothers will states that her entire estate is to be divided equally amongst all her children. I am one of the executors.

My sister and brother believe that my deceased sisters share will pass to her husband. They had no children.

I think it won't.

Who is right?

A lot depends on when your mother died.

coylemj · 08-10-2013 11:26PM

Depends on whether the will specifically mentions 'surviving' children. If it was professionally drawn up, there should be no ambiguity and the answer you are looking for should be in the will.

coylemj · 08-10-2013 11:29PM

camphor wrote: »

A lot depends on when your mother died.

If you mean 'when the mother died relative to the daughter', that's covered in the title of the thread. Either the mother is still alive and the question is hypothetical, or the sister predeceased the mother who is now dead in which case it's a live question.

My reading of it is that the mother is still alive.

camphor · 08-10-2013 11:32PM

coylemj wrote: »

If you mean 'when the mother died relative to the daughter', that's covered in the title of the thread. Either the mother is still alive and the question is hypothetical, or the sister predeceased the mother who is now dead in which case it's a live question.

My reading of it is that the mother is still alive.

I took from the title of the thread that the sibling was a sibling of the testator not a child of the testator.

Gangu · 08-10-2013 11:36PM

camphor wrote: »

I took from the title of the thread that the sibling was a sibling of the testator not a child of the testator.

Me too.

Spanish Eyes · 08-10-2013 11:44PM

coylemj wrote: »

Depends on whether the will specifically mentions 'surviving' children. If it was professionally drawn up, there should be no ambiguity and the answer you are looking for should be in the will.

Yes it was drawn up by a solicitor.

The question is....

If a child of my mother dies before her, (no children) does that child's share pass to her husband or not?

I don't know. Just wondered, having researched, it is not clear, but seems to suggest that a childs inheritance will pass to that persons issue, if the child dies before the testator.

Anyone?

coylemj · 08-10-2013 11:53PM

Spanish Eyes wrote: »

If a child of my mother dies before her, (no children) does that child's share pass to her husband or not?

See S.98 of the Succession Act 1965 which seems to imply that the bequest would lapse unless the beneficiary (your sister) left issue (children) in which case the bequest would go to her children as if she (your sister) had died immediately after your mother.

Note the provision 'unless a contrary intention appears from the will', this would cover the situation where the parent leaves her estate only to her children who are alive at the time of her death.

In either case, it would appear that your sister's bequest would not go to her husband.

98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is 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 had happened immediately after the death of the testator, unless a contrary intention appears from the will.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0098.html#sec98

Spanish Eyes · 08-10-2013 11:53PM

camphor wrote: »

I took from the title of the thread that the sibling was a sibling of the testator not a child of the testator.

Apologies. I will never be a legal eagle obviously!

Did not mean to confuse. But the situation is ....my mother's will states that all children will take an equal share.

My mother is alive, one of her daughters is now deceased.

So what happens to the deceased daughters share when my mother passes away?

Thanks for your help.

Spanish Eyes · 08-10-2013 11:58PM

coylemj wrote: »

See S.98 of the Succession Act 1965 which seems to imply that the bequest would lapse unless the beneficiary (your sister) left issue (children) in which case the bequest would go to her children as if she (your sister) had died immediately after your mother.

Note the provision 'unless a contrary intention appears from the will', this would cover the situation where the parent leaves her estate only to her children who are alive at the time of her death.

In either case, it would appear that your sister's bequest would not go to her husband.

98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is 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 had happened immediately after the death of the testator, unless a contrary intention appears from the will.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0098.html#sec98

Thanks so much. It would seem that unless my deceased sister had children of her own, the bequest to her lapses, and presumably will fall into the residue.

Unless, as you say there was a clause to say what should happen to her share if she passed before my mother.

Am I on the right track here?

mathepac · 09-10-2013 12:12AM

Spanish Eyes wrote: »

... Unless, as you say there was a clause to say what should happen to her share if she passed before my mother.

Am I on the right track here?

Pretty much. Condolences on the untimely loss of your sister.

Your mother's current will now appears to have two rather three beneficiaries.

My maiden aunt died intestate a few years ago and the beneficiaries in cases where her siblings had pre-deceased her were the children of her siblings, not their spouses.

coylemj · 09-10-2013 12:13AM

Spanish Eyes wrote: »

Thanks so much. It would seem that unless my deceased sister had children of her own, the bequest to her lapses, and presumably will fall into the residue.

Unless, as you say there was a clause to say what should happen to her share if she passed before my mother.

Am I on the right track here?

Yes but you're making some assumptions which might be wide of the mark. For starters, it would be a bad will that allowed the share of the estate left to a deceased child to 'fall into the residue'. If a solicitor drew up the will, that should not happen and based on what you have said, the will should say that the estate is to be divided up among either (1) your mother's living children only or (2) your mother's living descendants per stirpes.

'Per stirpes' says that if one of your siblings with issue predeceases your mother, that sibling's share will be divided equally among his/her children. Option '1' above (living children only) could lead to a situation where your mother effectively dies intestate if she survives all of you so 'per stirpes' is probably best.

It might be no harm for your mother to get a look at the will and show it to you so you can see if there is any ambiguity.

camphor · 09-10-2013 06:40AM

coylemj wrote: »

See S.98 of the Succession Act 1965 which seems to imply that the bequest would lapse unless the beneficiary (your sister) left issue (children) in which case the bequest would go to her children as if she (your sister) had died immediately after your mother.

Note the provision 'unless a contrary intention appears from the will', this would cover the situation where the parent leaves her estate only to her children who are alive at the time of her death.

In either case, it would appear that your sister's bequest would not go to her husband.

98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is 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 had happened immediately after the death of the testator, unless a contrary intention appears from the will.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0098.html#sec98

That is not correct. It would go to the sisters estate and be distributed according to the provisions of the sisters estate. The gift is saved by the sister having children but they are not necessarily the beneficiaries.
The per stirpes rule applies to intestacy.

Spanish Eyes · 09-10-2013 07:22AM

The will states:

Pay just debts etc.

Charitable bequests,

Pecuniary legacies to grandchildren,

I leave the rest residue and remainder of my estate to divided equally amongst my children X,Y, andZ.

My deceased sister was married but had no children.

coylemj · 09-10-2013 01:51PM

camphor wrote: »

That is not correct. It would go to the sisters estate and be distributed according to the provisions of the sisters estate. The gift is saved by the sister having children but they are not necessarily the beneficiaries.

The OP's sister had no children so S.98 does not apply and the bequest lapses.

camphor wrote: »

The per stirpes rule applies to intestacy.

You can also write a 'per stirpes' distribution into a will.

coylemj · 09-10-2013 02:05PM

Spanish Eyes wrote: »

The will states:

.......

I leave the rest residue and remainder of my estate to divided equally amongst my children X,Y, andZ.

The residue will be divided equally amongst the surviving children, your deceased sister's estate will get nothing.

Now if any of your other siblings predecease your mother and they do have children, it gets a bit complicated. S.98 says that the bequest falls to that person's estate as if they died immedately after the testator (your mother).

Technically what this means is that if you had another sister who died and she left adult children all of whom were set up in life but she left all of her money to the Cats and Dogs home, her share of your mother's estate would go to the Cats and Dogs home.

The origial intention of S.98 appears to have been to preserve the parent's legacy for the benefit of his/her issue (the grandchildren of the testator) but the way it's worded, it simply says that the parent's bequest is preserved and becomes part of their estate so how it is distributed becomes subject to their will which as I said above, could have included a full or residuary legacy to the Cats & Dogs home in which case the grandchildren would get nothing.

In those circumstances and if I was you , I would be happier if the estate was bequeathed to your mother's living descendants via 'per stirpes' which would remove the ambiguity caused by S.98. In that case, if as above another sister died before your mother leaving children, those children would split their mother's share amongst themselves. Otherwise the lion's share of her bequest could go to an estranged (but not divorced) husband which perhaps would not be your mother's intention.

Spanish Eyes · 09-10-2013 08:54PM

coylemj wrote: »

The residue will be divided equally amongst the surviving children, your deceased sister's estate will get nothing.

Now if any of your other siblings predecease your mother and they do have children, it gets a bit complicated. S.98 says that the bequest falls to that person's estate as if they died immedately after the testator (your mother).

Technically what this means is that if you had another sister who died and she left adult children all of whom were set up in life but she left all of her money to the Cats and Dogs home, her share of your mother's estate would go to the Cats and Dogs home.

The origial intention of S.98 appears to have been to preserve the parent's legacy for the benefit of his/her issue (the grandchildren of the testator) but the way it's worded, it simply says that the parent's bequest is preserved and becomes part of their estate so how it is distributed becomes subject to their will which as I said above, could have included a full or residuary legacy to the Cats & Dogs home in which case the grandchildren would get nothing.

In those circumstances and if I was you , I would be happier if the estate was bequeathed to your mother's living descendants via 'per stirpes' which would remove the ambiguity caused by S.98. In that case, if as above another sister died before your mother leaving children, those children would split their mother's share amongst themselves. Otherwise the lion's share of her bequest could go to an estranged (but not divorced) husband which perhaps would not be your mother's intention.

Wow. Thanks or all that information. I think Mum would have like my sisters husband to have something. But the surviving children could make a gift to him after probate I suppose.

Anyhow, my mother is ill and not fit to review her will. That is why I wondered about the terms of the existing will now that my sister has passed away.

In my own will I have the following clause:

I leave the residue in equal shares to X and Y
If any of X and Y should pre decease me leaving issue, then that issue shall take in equal shares the share which such above named would have taken had they survived me.

It's Make a Will week soon. Must review my own I think.

Spanish Eyes · 09-10-2013 08:57PM

Thank you to everyone who helped.

The law on all this is a minefield. But I am clearer now.

Am I right about this when a sibling dies before the testator?

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