Will leaves money to person who has since died

christmasspirit

My Mum made a simple will years ago and left an equal share of her estate to each of her children. My sister has since died. Should my Mum rewrite her will as a result? If she doesn't, what will happen to my sisters share? Will it be divided between the remaining siblings or will it automatically go to my sisters surviving children?
Any advice gratefully received.

pmlindyloo

christmasspirit wrote: »

My Mum made a simple will years ago and left an equal share of her estate to each of her children. My sister has since died. Should my Mum rewrite her will as a result? If she doesn't, what will happen to my sisters share? Will it be divided between the remaining siblings or will it automatically go to my sisters surviving children?
Any advice gratefully received.

Often wills make provision for this.

Was the will done by a professional or was it an 'off the shelf' one?

If it was done by a professional then check it to see what it says about a beneficiary predeceasing.

If there is no provision in the will then because your sister was a close relative then her share will go to her surviving children.

Your mum may want to make a new will if she wishes things to be different.

http://www.advicenow.org.uk/living-together/wills-inheritance-issues/after-death,10168,FP.html

jackyann

Unless there was specific provision, definitely make a new will.

I think once one is past a certain age, it is best to use a solicitor and write in such provisions.

If you're young & fit, you can risk changing your will as needed, and gambling that you don't fall off your perch immediately after a change in circumstances.

But when you are older, better to write them all in.

christmasspirit

Thanks for the feedback. I think it was an off the shelf will (WHS I think), so I don't think there is any provision for these circumstances.

rpc

It depends on which country you are in (Scots Law differs to English Law), what provision was made in the will and whether sister had any children.

The English Law version is detailed here: http://www.step.org/doctrine-lapse

Always best to redraft if the will isn't specific IMHO so that there are fewer problems for the executors and beneficiaries after death.

edit: Actually I think on this issue Scots and English law are so close as to effectively be the same in most cases.

Mojisola

christmasspirit wrote: »

If she doesn't, what will happen to my sisters share? Will it be divided between the remaining siblings or will it automatically go to my sisters surviving children?

It will go to her children but it's much better to get a new will done to prevent any arguments.

A well-written will should have a clause in it setting out what will happen to legacies if the named person has already died.

Ziggazee

Mojisola wrote: »

It will go to her children but it's much better to get a new will done to prevent any arguments.

A well-written will should have a clause in it setting out what will happen to legacies if the named person has already died.

Not correct. It will be divided between the remaining beneficiaries unless the Will specifically states that the sister's share is to devolve to her children (her 'issue') if she predeceases mum.

Mojisola

Ziggazee wrote: »

Not correct. It will be divided between the remaining beneficiaries unless the Will specifically states that the sister's share is to devolve to her children (her 'issue') if she predeceases mum.

Not so. If the person who has pre-deceased is a child or grandchild (or further down the blood line), that person's share will be divided among any surviving offspring.

For anyone else, the legacy would fail and would either be divided among the other beneficiaries or go to the residuary beneficiary, depending on what the will said.

Ziggazee

Nope. The Will must specifically state that the sisters share is to devolve to her issue if she predeceases mother. Professional experience.

Mojisola

http://www.hmrc.gov.uk/manuals/ihtmanual/IHTM12084.htm
IHTM12084 - Succession: Wills: Legacies and devises: Lapse (England, Wales and Northern Ireland)
Lapse occurs when a gift made in a Will fails because of the death of the legatee or devisee in the testator’s (IHTM12001) lifetime. Where the legacy or devise is anything other than residue, that property will normally fall into residue.

If a gift of residue lapses, the property devolves as it would on intestacy (IHTM12101).

There are exceptions to the rule. The most common are where

a gift in a Will to a child or remoter issue of the testator or testatrix (IHTM12001) will not lapse if the dead beneficiary leaves issue (children) who are alive at the testator’s death (in England & Wales, the Wills Act/ S33 as amended by the Administration of Justice Act 1982/ S19; in Northern Ireland, article 22 of the Wills and Administration Proceedings (NI) Order 1994). This does not apply where the gift is a life interest.
the testator or testatrix makes substitutory provisions in the Will. For example a gift to ‘such of my children as are alive at my death’ will clearly benefit surviving children and not the issue of any predeceasing child.

Ziggazee

So it would appear the legal firm I work for are wrong eh Mojisola.....perhaps they should employ you ;-)