Advice on will after death of a beneficiary

The_chief

We have a family member who has died a widow with no children.

She has divided her estate between 8 beneficiaries (1/8 each) who are all named.

My query relates to the wording for one of the beneficiaries, one of her brothers, who has decreased:

"One part to Mr Bloggs absolutely"

Mr Bloggs has a widow and two surviving children.

Does Mr Bloggs share get passed to his surviving children or does the inclusion of the word "absolutely" mean that it goes to him alone and as he has now deceased, his share goes back to the estate?

Mojisola

Assuming this is England or Wales and there aren't instructions in the will about what happens if a beneficiary dies before the testator, I think that the legacy would fail and the estate would be divided between the surviving seven.

If those seven all agree, the will could be varied so that his children were given his share.

If you have any doubts or the executors' decision is likely to be challenged, pay for legal advice.

g6jns_2

The_chief wrote: »

We have a family member who has died a widow with no children.

She has divided her estate between 8 beneficiaries (1/8 each) who are all named.

My query relates to the wording for one of the beneficiaries, one of her brothers, who has decreased:

"One part to Mr Bloggs absolutely"

Mr Bloggs has a widow and two surviving children.

Does Mr Bloggs share get passed to his surviving children or does the inclusion of the word "absolutely" mean that it goes to him alone and as he has now deceased, his share goes back to the estate?

If the gift fails it normally falls into the residue of the estate. Is there a residuary legatee? Or does the will just say that the estate is to be divided equally between a list of people? Is the wording the same for each one?

SailorSam

If Mr Bloggs has received his part share, it then belongs to him. I can't see that the origional estate could ask for it back again once he died.
If a Solicitor drew the will up he should have made it clear what 'absolutely' meant. I presume it may be if he'd died it wasn't to go to his widow.

BJV

I have to say I think it is a bit mean.


Ok I am not a solicitor but reading the post your family member meant to leave someone to Mr Blogs for his and his families benefit.


I would suggest passing the 1/8 over to his widow. As with everything there is always a legal and a moral answer, sometimes they are not the same. But if it was me it would not feel right taking the extra knowing that in reality it was a dying wish that it go elsewhere.

g6jns_2

BJV wrote: »

I have to say I think it is a bit mean.


Ok I am not a solicitor but reading the post your family member meant to leave someone to Mr Blogs for his and his families benefit.


I would suggest passing the 1/8 over to his widow. As with everything there is always a legal and a moral answer, sometimes they are not the same. But if it was me it would not feel right taking the extra knowing that in reality it was a dying wish that it go elsewhere.

It is not a case of morality. Executors swear to distribute the estate according to law and emphatically don't have any discretion in the way you suggest. If the testator wanted to leave it to Bloggs or his family then they should have said so. Solicitors should always ask their clients this when preparing a will. To do as you say would be a serious breach of trust by the executor.

Mojisola

g6jns wrote: »

It is not a case of morality. Executors swear to distribute the estate according to law and emphatically don't have any discretion in the way you suggest. If the testator wanted to leave it to Bloggs or his family then they should have said so. Solicitors should always ask their clients this when preparing a will. To do as you say would be a serious breach of trust by the executor.

Wills get varied every day. It's not a serious breach of trust.

In a case like this, I would certainly hope the other beneficiaries would agree to give the deceased brother's share to his children.

g6jns_2

Mojisola wrote: »

Wills get varied every day. It's not a serious breach of trust.

In a case like this, I would certainly hope the other beneficiaries would agree to give the deceased brother's share to his children.

It is unless it is done with proper authority such as a DOV. BJV was clearly suggesting doing this.

The_chief

This is where it may get complicated, just to explain. The deceased passed away leaving a brother and his wife, plus two sister in laws (her two other brothers passed away). One of these brothers died before she had done the will and the other died a few years after the will was written (but the will was never amended) so the beneficiaries are as follows:

1) Brother A
2) Wife of Brother A
3) Brother B (now Deceased)
4) Wife of Brother B
5) Wife of Brother C
6) 2 Children of Brother A
7) 2 Children of Brother B
8) 2 Children of Brother C

So all named beneficiaries are alive other than Brother B. Brother C has not been named in the will as he was deceased at the time of writing.

All beneficiaries 1-5 have been named and the word "absolutely" used as follows:

"1/8th share of my estate to Brother A absolutely"

beneficiaries 6-8 have been named with "absolutely or the survivor of them"

The question is, are the wife/children of Brother B entited to his share as they have survived him even through they are already named? In effect, as it stands, the family of Brother A gets 3/8, the family of Brother B gets 3/8 and the Family of Brother C gets 2/8 of the estate.

If Brother B's share is put back into the estate, Brother A's family will get even more than the originally intended 3/8, Brother B's family will get less than 3/8 intended and Brother C's family will get more than the 2/8 intended. Not straightforward!

The final clause states:
"If any share or shares of my residuary estate shall be undisposed of by reason of lapse of any gift contained in the foregoing clause such shares shall sink into my residuary estate and be held for the other persons entitled to the remaining shares in the proportions which such shares bare to one another"

JimmyTheWig

Can you confirm that Brother B died between the writing of the will and the writer of the will dying?

By symmetry, I would argue that family B should receive the same as family C.

The_chief

Yes, the will was written in 2005, brother B died 2007