Advice on will after death of a beneficiary

g6jns_2

The_chief wrote: »

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"

Which means each beneficiary still alive at the date of the testator' death get 1/7 of the total net estate each. The interrelationships between the beneficiaries makes no difference.

JimmyTheWig

I think it all depends on the meaning of that final clause. I take it to mean that the estate should be split equally between however many of the 8 named "people" are available.

g6jns_2

JimmyTheWig wrote: »

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 fact that some beneficiaries are related makes no difference. Each beneficiary gets an equal share.

Mojisola

Mojisola wrote: »

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

g6jns wrote: »

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

I don't think that's evident from the post.

I read it that BJV was suggesting a DOV just as I did.

G6JNS

Mojisola wrote: »

I don't think that's evident from the post.

I read it that BJV was suggesting a DOV just as I did.

He made no mention of it. Furthermore he stated that there was a choice between a "moral" answer and a "legal" one. An executor has no choice but to follow the law regardless of any feeling of "fairness".

BobQ

OP in this context "absolutely" means without conditions.

The will defines 8 shares of which "Brother B" the "2 Children of B" are two.

Had the testator wanted the the share of Brother B to be divided among his children, the Will would have said something like "Brother B absolutely, but if he shall not survive me to his children in equal shares".

As it stands the bequest to Brother B fails. So the estate has 7 shares and the two children of Brother B get 1/14 each.

The last paragraph means that the 1/8 share left to Brother B gets re-distributed equally to the other 7 valid shares defined.

This may not be what the other beneficiaries think is fair. As has been pointed out in law the executor(s) have no choice but to follow the terms of the will and if it is being dealt with by a solicitor they will require it is done according to the Will or a Deed of Variation is produced to vary it.

Obviously if we are talking about small sums and everyone involved agrees to such a variation in an amicable way, and everyone trusts each other a less formal solution could be used. For example follow the will and agree that each person apart from the children of B will pay them the extra to make things equal.

The_chief

Thanks for all the responses, that's very helpful.

g6jns_2

BobQ wrote: »

OP in this context "absolutely" means without conditions.

The will defines 8 shares of which "Brother B" the "2 Children of B" are two.

Had the testator wanted the the share of Brother B to be divided among his children, the Will would have said something like "Brother B absolutely, but if he shall not survive me to his children in equal shares".

As it stands the bequest to Brother B fails. So the estate has 7 shares and the two children of Brother B get 1/14 each.

The last paragraph means that the 1/8 share left to Brother B gets re-distributed equally to the other 7 valid shares defined.

This may not be what the other beneficiaries think is fair. As has been pointed out in law the executor(s) have no choice but to follow the terms of the will and if it is being dealt with by a solicitor they will require it is done according to the Will or a Deed of Variation is produced to vary it.

Obviously if we are talking about small sums and everyone involved agrees to such a variation in an amicable way, and everyone trusts each other a less formal solution could be used. For example follow the will and agree that each person apart from the children of B will pay them the extra to make things equal.

Also note that if any of the beneficiaries are aged under 18 a DOV can only be done with the permission of the court if it is to their detriment.

JimmyTheWig

g6jns wrote: »

The fact that some beneficiaries are related makes no difference. Each beneficiary gets an equal share.

I agree in terms of the law.
But it is pretty clear to me what would have been wanted had the will writer known that Brother B wouldn't be alive.

G6JNS

JimmyTheWig wrote: »

I agree in terms of the law.
But it is pretty clear to me what would have been wanted had the will writer known that Brother B wouldn't be alive.

If the testator wanted to change her will accordingly she could have done so. The will made it explicitly clear what was to happen in the case of any of the beneficiaries pre-deceasing the testator so she did anticipate the possibility that this might happen. So your theory is just wrong.