Dodgy wording in a will ?

Is it Scottish or English? Not sure on English but for Scottish ones if its silent as to a 'whom failing' then the bequest falls and so the £10k that can not be paid out to the deceased legatees falls to the residue with the residuary beneficiaries sharing it. The clauses you have written are ones you might expect where someone intends the bequest to go down that line though its not wrong not to have them. I would be fairly sure that its the same for English wills.

Did either Cat or Mouse have children? If yes, then their £10k would be split equally between each of their children.

i.e. if Cat had 4 children, then they'd get £2500 each.

If one of them had NO children, then the £10k share would presumably be shared out amoungst the other 9???

Hi John_Pierpoint,

I am afraid this is a very poorly written Will and you are right to have concerns.

The specific gifts of £5000 each to the 8 nieces and nephews who survive the deceased are easy enough. Where cat and mouse have died before the deceased, unless there is specifically a substitute named to take the gifts, then those 2 gifts will fail.

Pinkshoes, what you are thinking of only applies where a child of the deceased predeceases leaving children and not in the case of the OP, as cat and mouse weren't children of the deceased.

The failed gifts must now be added into the residue and so that will be £60,000. Now we come to the tricky part. It seems that this must be divided proportionately among the list, and if they all received the same amount, then it will be divided equally.

However there is some poor drafting here, because it should say "I bequeath all the rest residue of my estate unto my executor upon trust that he shall divide the same amongst all the legatees who survive me mentioned in clause (x) of this my Will fractionally according to the value of each legacy bequeathed by the appropriate sub clause thereof."

Then it would be a simple case of dividing the residue amongst the eight. However it could be argued that the residue is divided by 10 and for the two that have died there is a partial intestacy of £6000 each.

Where there is a partial intestacy, the law will dictate where that money goes and there is a strict pecking order, which I won't go into here. Alternatively it could also be argued the other way - that the deceased actually intended the 10 to receive the estate between them.

Now if the closest relatives surviving the deceased are all the nieces and nephews listed in the Will, then there is no problem - you simply divide it among them. If instead there is a closer living relative like a brother or sister they might argue the £12,000 goes to them instead.

I wouldn't like to be in your shoes here, as you are legally liable - so if you distribute it among the 8 and a brother or sister argue later that there is a partial intestacy you could have problems.

Before you do anything else it might be an idea to gain the opinion of the Registrar at the Probate office as you may require the court to rectify or interpret the Will. I'm afraid the opinions of solicitors may differ so I would talk to the Registrar first.

I would be very interested to know if this Will was drafted by a solicitor. Anyway best of luck, and by the way bequeath simply means give.

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John_Pierpoint wrote: »

The hint is that he was a widower - yes he used to have a wife and guess what that wife had relatives too.

John_Pierpoint wrote: »

Yes it is an English will, drawn up less than 10 years ago, by a now retired solicitor (I've been checking!)

Was the will drawn up before or after his wife died?

i.e. if it was before, then did his wife have a will that stated that her assets went to him, and upon his death her share of X Y and Z would then be split amongst her relatives/siblings etc...?!?