Confusing clause in will 22 July at 4:06PM in Deaths, Funerals & Probate 18 replies 1.4K views

LarryR

A friend of mine's mother has just died and her last will and testament has been opened. There's a clause within it that is confusing in the way it is worded and wondered if anyone can see if it makes sense to them?
The mother had 3 children (oldest son, middle daughter, youngest son). Mother was 94, oldest son is in mid 70s, middle daughter in early 70s, and youngest son is late 60s. There are several other grandchildren, although only two are explicitly mentioned below.
The confusing clause is 4.1, below:

4 MY TRUSTEES shall hold my residuary Estate on the following Trusts:-
4.1 TO GIVE to [oldest son] all my legal and beneficial interest in the freehold property at [property address]. For the avoidance of doubt this gift includes all my legal and beneficial interest in the ground floor flat at [property address] PROVIDED that if [oldest son] shall die before me then in substitution this gift will pass as to two thirds to [oldest son]'s daughters [granddaughter 1] and [granddaughter 2] and if more than one in equal shares absolutely and as to the other third to my daughter [middle daughter name].
4.2 TO PAY the balance of my Residuary Estate to such of my children [middle daughter], [oldest son] and [youngest son] as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if either [middle daughter] or [youngest son] shall die before attaining a vested interest but leaving issue living at my death or born thereafter who shall attain or have attained the age of eighteen then such issue shall stand in his or her place and take according to their stocks and if more than one in equal shares absolutely. PROVIDED FURTHER that if [oldest son] shall die before attaining a vested interest then in substitution I leave the share of my Residuary Estate that [oldest son] would have inherited as to two-thirds to [granddaughter 1] and [granddaughter 2] absolutely PROVIDED that if either [granddaughter 1] or [granddaughter 2] shall have died before [oldest son] such share would have passed to them will pass in substitution to the survivor of them.

It looks like the property has been wholly left to the oldest son, however, when speaking to the oldest son, he says no, it should be divided 3-ways between the 3 children? My friend is the middle daughter who thinks she's getting nothing unless the oldest son had died before the mother? The language used in the will is very confusing?!? Hope this makes sense to someone?
TIA

Linton

4.1 seems clear to me.  The oldest son gets the property unless he died before Mother - the PROVIDED in capitals applies to everything that follows.  It would seem he didnt die.

The bit about what happens if he did die I am less clear about.  I think what it may mean is that GD 3 gets 1/3.  GDs 1 & 2 also get 1/3 each unless one dies in which case the other gets 2/3.

If the eldest son wants his daughters to get some or all of the property he is free to set up a Deed of Variation which changes the will to distribute the property however he wants.

Mojisola

LarryR said:

A friend of mine's mother has just died and her last will and testament has been opened. There's a clause within it that is confusing in the way it is worded and wondered if anyone can see if it makes sense to them?

4 MY TRUSTEES shall hold my residuary Estate on the following Trusts:-
4.1 TO GIVE to [oldest son] all my legal and beneficial interest in the freehold property at [property address]. For the avoidance of doubt this gift includes all my legal and beneficial interest in the ground floor flat at [property address] PROVIDED that if [oldest son] shall die before me then in substitution this gift will pass as to two thirds to [oldest son]'s daughters [granddaughter 1] and [granddaughter 2] and if more than one in equal shares absolutely and as to the other third to my daughter [middle daughter name].
4.2 TO PAY the balance of my Residuary Estate to such of my children [middle daughter], [oldest son] and [youngest son] as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if either [middle daughter] or [youngest son] shall die before attaining a vested interest but leaving issue living at my death or born thereafter who shall attain or have attained the age of eighteen then such issue shall stand in his or her place and take according to their stocks and if more than one in equal shares absolutely. PROVIDED FURTHER that if [oldest son] shall die before attaining a vested interest then in substitution I leave the share of my Residuary Estate that [oldest son] would have inherited as to two-thirds to [granddaughter 1] and [granddaughter 2] absolutely PROVIDED that if either [granddaughter 1] or [granddaughter 2] shall have died before [oldest son] such share would have passed to them will pass in substitution to the survivor of them.

It looks like the property has been wholly left to the oldest son, however, when speaking to the oldest son, he says no, it should be divided 3-ways between the 3 children? My friend is the middle daughter who thinks she's getting nothing unless the oldest son had died before the mother? The language used in the will is very confusing?!?

As all three of her children are still alive, the only bits that apply are those in bold.

As Linton says, if the eldest son wants to share the value of the property between all three of them, he can make a deed of variation to the will.

JGB1955

It looks, to me, that the eldest son gets the property and everything else (cash, jewellery, shares, vehicles etc etc) gets shared equally between all 3 siblings.

Mojisola

JGB1955 said:

It looks, to me, that the eldest son gets the property and everything else (cash, jewellery, shares, vehicles) gets shared between the younger siblings.

Between all three siblings.

JGB1955

Thanks Mojisola...I edited my post as you were posting!

xylophone

Let's say the eldest is Tom, the middle child is Mary and the youngest is Harry.
All three have survived their mother.

TO GIVE to  Tom  all my legal and beneficial interest in the freehold property at [property address]. For the avoidance of doubt this gift includes all my legal and beneficial interest in the ground floor flat at [property address] PROVIDED that if Tom shall die before me ......

But Tom was alive at the time of his mother 's death and therefore inherits the real estate absolutely. There is no stipulation as to the number of days/weeks by which he should survive his mother in order to inherit - he inherits if he survives her.

TO PAY the balance of my Residuary Estate to such of my children Mary, Tom and Harry as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if either [middle daughter] or [youngest son] shall die 

But Mary, Tom and Harry were all alive at the time of their mother's death and so inherit the balance of the residuary estate absolutely. There is no stipulation as to the number of days/weeks by which they should survive their mother in order to inherit - they inherit if they outlive her.

If Tom feels that it would be fairer to share the properties with his siblings/his children/his nieces and nephews. then he can arrange for a Deed of Variation of the will?

If unsure, they can always check with a solicitor.

Mojisola

It makes me wonder whether solicitors write wills in such difficult language in the hope that they will be paid to by the executors to do the work because the executors get confused about the meaning.

getmore4less

The language chosen is avoid uncertainty as it often come from test cases and council provided terminology.

4.1 looks straightforward 
4.2 seems to leave 1/3 of the residuary that the oldest would have got unallocated if he dies.

Are there words missing? 

Manxman_in_exile

It seems straightforward to me as well.  Assuming all three children survived their mother, then the oldest son gets the flat for himself, and the balance of the residuary estate is split equally between the three of them.

AnotherJoe

I agree its not complicated (but mostly because beneficiaries are still alive, if some have died that gets complex !)

What Manxman said ,and if eldest son wishes to change who gets what of his portion of house he can do so simply.