Deceased beneficiary - checking I've got this right!

RociCap

Edited for privacy 

Mrs_pbradley936

This is likely to fall under a "contentious probate" and you will save yourself time, money and headaches by seeing a solicitor for a consultation.

My friend had a case where her father died and left everything to his wife. My friend had a sister and a brother BUT then the brother died before the mother. The mother then did another will leaving everything to her two daughters. Are you with me so far? Well then the old lady died and the brother's wife halted all the probate proceedings demanding her share. It was all sorted out but the delay was a very long time because the Court has to investigate it all.

Honestly a solicitor is the way to go and I would not begrudge them their fee.

RociCap

Mrs_pbradley936 said:

This is likely to fall under a "contentious probate" and you will save yourself time, money and headaches by seeing a solicitor for a consultation.

My friend had a case where her father died and left everything to his wife. My friend had a sister and a brother BUT then the brother died before the mother. The mother then did another will leaving everything to her two daughters. Are you with me so far? Well then the old lady died and the brother's wife halted all the probate proceedings demanding her share. It was all sorted out but the delay was a very long time because the Court has to investigate it all.

Honestly a solicitor is the way to go and I would not begrudge them their fee.

Okay - thank you. The deceased beneficiary had a will which also deliberately excluded this person for the same reasons, so my sibling is arguing that should he raise a case (unlikey - he lives a very chaotic lifestyle and the chances of him contesting it legally are small, he's more likely to just put some windows though or turn up at my sibling's house, where her children are - he no longer knows where I live thank god) that we would be able to argue that:

a) my grandma deliberately removed him from her will with the codicil, indicating she didn't want money to go to him
b) that even if grandma's intention was irrelevant as the share passes back to my mum legally, the beneficiary themselves also ensured that no money was to pass from her estate to him 

But I see your point - the last thing we want is him kicking off either way so it'd be good to have the law onside for if he does.

Manxman_in_exile

Just to clarify - is the situation as follows?

Your grandmother is the deceased; she had one child (your mother); your mother had three children (you, your sister and Person Y); your grandmother's will splits her estate equally between your mother, you and your sister; your mother died some years ago but your grandmother didn't do a new will to account for your mother's death.

If that is the case then I believe your grandmother's estate should be distributed as follows: one third to you; one third to your sister; and the remaining third (which would have been your mother's share) should be divided equally between you, your sister and Person Y.

I don't think the fact your grandmother wrote Person Y out of her will is relevant.  I think Person Y inherits because their/your mother remained a beneficiary and pre-deceased your grandmother.  I think your grandmother should have done a new will after your mother died - but didn't.  (Some of these issues are discussed in the earlier thread a couple of days ago called "New will required?".  Might be worth reading).

Of course I may be completely wrong as I'm not a lawyer.  As you have already been advised, you really need to get advice from oa solicitor experienced in contentious probate.

[Edit:  I've just noticed that your mother also excluded Person Y from her will.  Whether that makes a difference I don't know.  The relevant legislation simply says:

"33  Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.

(1)Where—

(a)a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b)the intended beneficiary dies before the testator, leaving issue; and

(c)issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death."

It doesn't say anything about the effect - if any - of the deceased beneficiary's will.

Wills Act 1837 (legislation.gov.uk)

You really need legal advice]

Brie

It sounds confusing legally and personally distressing.  

I know others suggest checking your home insurance to see if you have any legal cover you could use to check the basics with a solicitor.  Alternatives would be if there is any legal cover via work or, if you or any of your family work now or in the past for a bank then consult an organisation such as Bank Worker's Charity.  Other similar industry organisations are likely available.

Keep_pedalling

RociCap said:

Mrs_pbradley936 said:

This is likely to fall under a "contentious probate" and you will save yourself time, money and headaches by seeing a solicitor for a consultation.

My friend had a case where her father died and left everything to his wife. My friend had a sister and a brother BUT then the brother died before the mother. The mother then did another will leaving everything to her two daughters. Are you with me so far? Well then the old lady died and the brother's wife halted all the probate proceedings demanding her share. It was all sorted out but the delay was a very long time because the Court has to investigate it all.

Honestly a solicitor is the way to go and I would not begrudge them their fee.

Okay - thank you. The deceased beneficiary had a will which also deliberately excluded this person for the same reasons, so my sibling is arguing that should he raise a case (unlikey - he lives a very chaotic lifestyle and the chances of him contesting it legally are small, he's more likely to just put some windows though or turn up at my sibling's house, where her children are - he no longer knows where I live thank god) that we would be able to argue that:

a) my grandma deliberately removed him from her will with the codicil, indicating she didn't want money to go to him
b) that even if grandma's intention was irrelevant as the share passes back to my mum legally, the beneficiary themselves also ensured that no money was to pass from her estate to him 

But I see your point - the last thing we want is him kicking off either way so it'd be good to have the law onside for if he does.

That clause only applies to her estate, as she died before her mother it has no bearing on the distribution of your grandmother’s estate. 

Your grandmother really should have made a new will after your mother’s died, The third share that would have been distributed to your mother must be distributed as dictated by law, so you really should take legal advice.

getmore4less

Manxman_in_exile said:

Just to clarify - is the situation as follows?

Your grandmother is the deceased; she had one child (your mother); your mother had three children (you, your sister and Person Y); your grandmother's will splits her estate equally between your mother, you and your sister; your mother died some years ago but your grandmother didn't do a new will to account for your mother's death.

If that is the case then I believe your grandmother's estate should be distributed as follows: one third to you; one third to your sister; and the remaining third (which would have been your mother's share) should be divided equally between you, your sister and Person Y.

I don't think the fact your grandmother wrote Person Y out of her will is relevant.  I think Person Y inherits because their/your mother remained a beneficiary and pre-deceased your grandmother.  I think your grandmother should have done a new will after your mother died - but didn't.  (Some of these issues are discussed in the earlier thread a couple of days ago called "New will required?".  Might be worth reading).

Of course I may be completely wrong as I'm not a lawyer.  As you have already been advised, you really need to get advice from oa solicitor experienced in contentious probate.

[Edit:  I've just noticed that your mother also excluded Person Y from her will.  Whether that makes a difference I don't know.  The relevant legislation simply says:

"33  Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.

(1)Where—

(a)a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b)the intended beneficiary dies before the testator, leaving issue; and

(c)issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death."

It doesn't say anything about the effect - if any - of the deceased beneficiary's will.

Wills Act 1837 (legislation.gov.uk)

You really need legal advice]

I think the clause the OP mentions overrides section 33
Really need the full context as codicils can be tricky and claification of the law.

Back to the solicitors that wrote the will and codicil. 

RociCap

getmore4less said:

Manxman_in_exile said:

Just to clarify - is the situation as follows?

Your grandmother is the deceased; she had one child (your mother); your mother had three children (you, your sister and Person Y); your grandmother's will splits her estate equally between your mother, you and your sister; your mother died some years ago but your grandmother didn't do a new will to account for your mother's death.

If that is the case then I believe your grandmother's estate should be distributed as follows: one third to you; one third to your sister; and the remaining third (which would have been your mother's share) should be divided equally between you, your sister and Person Y.

I don't think the fact your grandmother wrote Person Y out of her will is relevant.  I think Person Y inherits because their/your mother remained a beneficiary and pre-deceased your grandmother.  I think your grandmother should have done a new will after your mother died - but didn't.  (Some of these issues are discussed in the earlier thread a couple of days ago called "New will required?".  Might be worth reading).

Of course I may be completely wrong as I'm not a lawyer.  As you have already been advised, you really need to get advice from oa solicitor experienced in contentious probate.

[Edit:  I've just noticed that your mother also excluded Person Y from her will.  Whether that makes a difference I don't know.  The relevant legislation simply says:

"33  Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.

(1)Where—

(a)a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b)the intended beneficiary dies before the testator, leaving issue; and

(c)issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death."

It doesn't say anything about the effect - if any - of the deceased beneficiary's will.

Wills Act 1837 (legislation.gov.uk)

You really need legal advice]

I think the clause the OP mentions overrides section 33
Really need the full context as codicils can be tricky and claification of the law.

Back to the solicitors that wrote the will and codicil. 

Yep, think we'll have to. My sister thinks (hopes?) that the clause mentioned about lapse/failure would cover it, but we really don't want to take any chances. 

The solicitors who wrote the will and codicil are different (firm was bought out - not sure the specific solicitor who wrote the original will is still working), but hopefully they'll be able to clarify. I've booked a free provisional session with a local probate solicitor tomorrow, too. 

RociCap

Manxman_in_exile said:

Just to clarify - is the situation as follows?

Your grandmother is the deceased; she had one child (your mother); your mother had three children (you, your sister and Person Y); your grandmother's will splits her estate equally between your mother, you and your sister; your mother died some years ago but your grandmother didn't do a new will to account for your mother's death.

If that is the case then I believe your grandmother's estate should be distributed as follows: one third to you; one third to your sister; and the remaining third (which would have been your mother's share) should be divided equally between you, your sister and Person Y.

I don't think the fact your grandmother wrote Person Y out of her will is relevant.  I think Person Y inherits because their/your mother remained a beneficiary and pre-deceased your grandmother.  I think your grandmother should have done a new will after your mother died - but didn't.  (Some of these issues are discussed in the earlier thread a couple of days ago called "New will required?".  Might be worth reading).

Of course I may be completely wrong as I'm not a lawyer.  As you have already been advised, you really need to get advice from oa solicitor experienced in contentious probate.

[Edit:  I've just noticed that your mother also excluded Person Y from her will.  Whether that makes a difference I don't know.  The relevant legislation simply says:

"33  Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.

(1)Where—

(a)a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b)the intended beneficiary dies before the testator, leaving issue; and

(c)issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death."

It doesn't say anything about the effect - if any - of the deceased beneficiary's will.

Wills Act 1837 (legislation.gov.uk)

You really need legal advice]

Yep, that's the situation. As another poster said - it's possible the clause I included negates this (I just don't understand legalese well enough to know!), but I think it's definitely worth checking. Going to email the solicitors' now. Thank you!

theoretica

I hope the clause does work as intended - but agree this is a case for getting a definitive legal answer.

getmore4less

RociCap said:

getmore4less said:

Manxman_in_exile said:

Just to clarify - is the situation as follows?

Your grandmother is the deceased; she had one child (your mother); your mother had three children (you, your sister and Person Y); your grandmother's will splits her estate equally between your mother, you and your sister; your mother died some years ago but your grandmother didn't do a new will to account for your mother's death.

If that is the case then I believe your grandmother's estate should be distributed as follows: one third to you; one third to your sister; and the remaining third (which would have been your mother's share) should be divided equally between you, your sister and Person Y.

I don't think the fact your grandmother wrote Person Y out of her will is relevant.  I think Person Y inherits because their/your mother remained a beneficiary and pre-deceased your grandmother.  I think your grandmother should have done a new will after your mother died - but didn't.  (Some of these issues are discussed in the earlier thread a couple of days ago called "New will required?".  Might be worth reading).

Of course I may be completely wrong as I'm not a lawyer.  As you have already been advised, you really need to get advice from oa solicitor experienced in contentious probate.

[Edit:  I've just noticed that your mother also excluded Person Y from her will.  Whether that makes a difference I don't know.  The relevant legislation simply says:

"33  Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.

(1)Where—

(a)a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b)the intended beneficiary dies before the testator, leaving issue; and

(c)issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death."

It doesn't say anything about the effect - if any - of the deceased beneficiary's will.

Wills Act 1837 (legislation.gov.uk)

You really need legal advice]

I think the clause the OP mentions overrides section 33
Really need the full context as codicils can be tricky and claification of the law.

Back to the solicitors that wrote the will and codicil. 

Yep, think we'll have to. My sister thinks (hopes?) that the clause mentioned about lapse/failure would cover it, but we really don't want to take any chances. 

The solicitors who wrote the will and codicil are different (firm was bought out - not sure the specific solicitor who wrote the original will is still working), but hopefully they'll be able to clarify. I've booked a free provisional session with a local probate solicitor tomorrow, too. 

It's the one that wrote the codicil that are in effect responsible for making sure that met the objective of completely disinheriting the grandchild.