Confusing clause in will

Dox

getmore4less said:

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? 

This looks quite old fashioned wording and I'd guess the will was written some time ago. The wording is needlessly convoluted even by today's legal standards.

Not sure where the local council comes into things, but personally I'd steer well clear of any of their wordings!

Keep_pedalling

Dox said:

getmore4less said:

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? 

This looks quite old fashioned wording and I'd guess the will was written some time ago. The wording is needlessly convoluted even by today's legal standards.

Not sure where the local council comes into things, but personally I'd steer well clear of any of their wordings!

That would be legal council rather than the local council

xylophone

That would be legal council rather than the local council 

Counsel?  As in Queen's Counsel?

TBagpuss

Mojisola said:

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.

No - the language is used to try to avoid confusion by using terms and phrases which have established meanings nad interpretations, and to avoid ay ambiguity. It's technical and like any form of technical vocabulary, not always clear to those without experience.

I would agree that it is in this case fairly old fashioned, I suspect that the will was either drawn up some time ago or by someone using an old set of precedents, but it is not done in any cynical way. 

It used to be the case that legal documents were always written without punctuation, so wording had to be clear without it (because the last thing you want is someone being able to slip in a stray comma or colon and change the entire meaning of a sentence) It's less true today, perhaps because the use of word processes and photocopiers mean that there is far less likely to be just one copy of a document these days, so interpolations in the text would be less likely to be overlooked, but like a lot of things, apparently weird or clunky rules do have valid underlying reasons. 

LarryR

Just wanted to say thanks for taking the time to answer everyone. My friends spoke to a solicitor who agreed with the thinking here. The will did exclude my friends, the middle daughter, but the three siblings came to an agreement in the end - although it's verbal at this stage and I'm not sure they're willing to put it in writing (as deed of variation) which is disappointing and suspicious (if you ask me!). Again, thanks for your replies.

naedanger

LarryR said:

Just wanted to say thanks for taking the time to answer everyone. My friends spoke to a solicitor who agreed with the thinking here. The will did exclude my friends, the middle daughter, but the three siblings came to an agreement in the end - although it's verbal at this stage and I'm not sure they're willing to put it in writing (as deed of variation) which is disappointing and suspicious (if you ask me!). Again, thanks for your replies.

If the solicitor thought the middle daughter was excluded then I don't think that does agree with the thinking here.

I doubt there is anything suspicous in not wanting a deed of variation. (It has a cost, which probably outweighs the benefits.)

xylophone

The will did exclude my friends, the middle daughter, 

How do they make that out?

There are three children  TOM (eldest), MARY (middle child) and HARRY (youngest).

TO GIVE to  TOM [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  TOM [oldest son] shall die before me 

But TOM survived his mother so gets the real estate.

TO PAY the balance of my Residuary Estate to such of my children MARY [middle daughter],  TOM [oldest son] and  HARRY [youngest son] as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if either  MARY [middle daughter] or   HARRY  [youngest son] shall die before attaining a vested interest 

MARY (middle child), TOM (eldest child) and HARRY were all living at the time of their mother's  death so that the residue of the estate is shared equally between them.

Manxman_in_exile

I agree with naedanger and xylophone that what you are saying the solicitor said, appears to be wrong*.

The oldest sibling inherits absolutely the mother's "real property" (I think it was a flat?) so he owns it outright, and everything else is shared between all three siblings.  If any of them is involved as the executor of their mother's will, they really need to make sure they get this right.  They should be following what the will says and not needing to "agree" to any variation.  The clause in the will is perfectly clear.

*That's assuming you got the wording correct in your opening post(?).