Deceased beneficiary - checking I've got this right!

Manxman_in_exile

I suspect you (or rather your sister) may be misunderstanding what a substitutory clause means.

The example you give from HMRC (I assume that is where it is from?) suggests a clause leaving gifts ONLY to such children as are alive at the testator's death can override the effect of s33 of the 1837 Act (as it now applies).  Whether that assertion by HMRC is correct or not, I don't know.  I'd certainly be wary of taking advice on succession law from them.  (I'd even be wary about taking advice on tax law from them!).

But in any event, that's not the case with your grandmother's will.  She's gifted everything to an identifiable child and grandchildren with apparently no provision as to what happens if any of them should pre-decease her.  I'm not at all clear that anything in your grandmother's will qualifies as a substitutory provision.  It seems to me that in that case s33 of the 1837 Act still applies and your mother's share is divided equally between her three children.

It seems to me that the paragraph (c) that you quote from your grandmother's will only comes into play if any bequest lapses.  I don't think you (or rather your sister) can argue that the gift to your mother has lapsed because s33 of the 1837 Act specifically says that such a gift "shall not lapse".

As everybody else is saying, you really need professional and paid for legal advice.  In particular, you need someone who can read the documents as a whole rather than just looking at individual bits in isolation.

I'd be delighted if you can come back and say I'm mistaken as it sounds a very unfortunate turn of events.

RociCap

Manxman_in_exile said:

I suspect you (or rather your sister) may be misunderstanding what a substitutory clause means.

The example you give from HMRC (I assume that is where it is from?) suggests a clause leaving gifts ONLY to such children as are alive at the testator's death can override the effect of s33 of the 1837 Act (as it now applies).  Whether that assertion by HMRC is correct or not, I don't know.  I'd certainly be wary of taking advice on succession law from them.  (I'd even be wary about taking advice on tax law from them!).

But in any event, that's not the case with your grandmother's will.  She's gifted everything to an identifiable child and grandchildren with apparently no provision as to what happens if any of them should pre-decease her.  I'm not at all clear that anything in your grandmother's will qualifies as a substitutory provision.  It seems to me that in that case s33 of the 1837 Act still applies and your mother's share is divided equally between her three children.

It seems to me that the paragraph (c) that you quote from your grandmother's will only comes into play if any bequest lapses.  I don't think you (or rather your sister) can argue that the gift to your mother has lapsed because s33 of the 1837 Act specifically says that such a gift "shall not lapse".

As everybody else is saying, you really need professional and paid for legal advice.  In particular, you need someone who can read the documents as a whole rather than just looking at individual bits in isolation.

I'd be delighted if you can come back and say I'm mistaken as it sounds a very unfortunate turn of events.

Thank you for your help - I appreciate it . I'd be delighted for you to be mistaken too, haha!

It's definitely more complicated than we realised, as we've realised (now) that the wording of the will makes the executors (myself, my sister, and would have been my mum) trustees and that it's then divided into equal 'shares' of the trust - I'd never seen a will before and didn't realise this wasn't standard until I've done some googling tonight.

It seems that it was set up that way as in the original will, the portion of the estate designated for our brother was to be held in trust until he reached 30 years old (as a result of his behaviour and her concerns about his maturity). Then the codicil was created, removing that section, but still designating the rest of us as trustees and the estate to be held in a will trust.

I have no idea if that changes any of the things I've asked here.

I've also noticed in the last hour alone - because I now *know* what it's referring to, and before didn't think to check it as I assumed it was just some legal jargon that wasn't important - that the will itself says "I declare that the provisions of section 33 of the Wills Act 1837 (or any modification or re-enactment of them) shall not apply to this my Will".

So...I might have been panicking for absolutely nothing. Don't ask me why I've been such an idiot - honestly, not getting a professional to do this from the start may have been the stupidest decision I've ever made!

But thank you, very sincerely - I've never had such kind, considered, knowledgeable advice anywhere else on the internet, the MSE forum seems to be a haven of it!

RociCap

I should add - that last post probably seems a bit disjointed, it starts in one place and ends in another. That is the result of it being written over the space of an hour and was effectively a stream of consciousness while I discover I hadn't read the will properly at all...

Taking it to a solicitor tomorrow anyway to clarify, and if anyone else ever dies and makes me an executor I'm leaving the country... 

Savvy_Sue

Don't beat yourself up about not immediately consulting a solicitor: straightforward wills shouldn't need one, and it can take a while to see what you're dealing with. 

Another advantage of using a solicitor in a case like this is that THEY will correspond with beneficiaries, so if sibling 3 is getting anything, it won't be for you and your sister to tell him and pass it on, because you will be paying a solicitor to do all that for you, at arm's length. 

RociCap

Savvy_Sue said:

Don't beat yourself up about not immediately consulting a solicitor: straightforward wills shouldn't need one, and it can take a while to see what you're dealing with. 

Another advantage of using a solicitor in a case like this is that THEY will correspond with beneficiaries, so if sibling 3 is getting anything, it won't be for you and your sister to tell him and pass it on, because you will be paying a solicitor to do all that for you, at arm's length. 

That's very kind of you haha! We did think it would be an easy one to sort - had a will, only cash, all in one bank account, 2 (living) beneficiaries, sounds simple, but evidently not and I think we were naive to assume it'd be a breeze.

And that's a very good point about the solicitor for the third sibling - unfortunately I don't think it will stop some of the drama (in that any contact tends to provoke a period of ...activity) but it will let the solicitor ensure the important things that need to be done properly are dealt with without us being sidetracked by the emotional stress. 

TBagpuss

I hop you were able to speak to a solicitor.

I *think* that the combination of all the things you mention means that the part giving your mum a share will be treated as lapsing and her share falling back to the two of you, as s.33 has been excluded, but the solicitor will be able to confirm for sure. 

RociCap

TBagpuss said:

I hop you were able to speak to a solicitor.

I *think* that the combination of all the things you mention means that the part giving your mum a share will be treated as lapsing and her share falling back to the two of you, as s.33 has been excluded, but the solicitor will be able to confirm for sure. 

We spoke to a probate solicitor, who confirmed exactly this - I'm glad to have had it set out in writing so we know we're doing the legally correct thing. As for the morally correct thing - we're actually going to put the portion we thought might have to go him in trusts for his 3 children for when they're older, as we'd already kind of mentally written it off during this panic anyway.

I very much doubt they'd see anything if it went to him (he doesn't see them, although my mum did while she was alive), and while it might mean issues with him anyway, we feel better knowing they won't miss out just because their dad is awful. As previous posters have helpfully suggested, we're going to speak to a solicitor about how best to do that.

Skiddaw1

RociCap said:

TBagpuss said:

I hop you were able to speak to a solicitor.

I *think* that the combination of all the things you mention means that the part giving your mum a share will be treated as lapsing and her share falling back to the two of you, as s.33 has been excluded, but the solicitor will be able to confirm for sure. 

We spoke to a probate solicitor, who confirmed exactly this - I'm glad to have had it set out in writing so we know we're doing the legally correct thing. As for the morally correct thing - we're actually going to put the portion we thought might have to go him in trusts for his 3 children for when they're older, as we'd already kind of mentally written it off during this panic anyway.

I very much doubt they'd see anything if it went to him (he doesn't see them, although my mum did while she was alive), and while it might mean issues with him anyway, we feel better knowing they won't miss out just because their dad is awful. As previous posters have helpfully suggested, we're going to speak to a solicitor about how best to do that.

I think that's a truly wonderful and appropriate gesture @RociCap . I'm sure your grandmother and your mother would have approved.

RAS

@RociCap

Think that is great.

I know you may not have seen your brother's children but it may be worth asking their mother about contact, even if it's only occasional cards. And maybe keeping an ear open if they are really keen/good at an activity but would struggle to pay for it, or will struggle to pay for a school trip?

RociCap

RAS said:

@RociCap

Think that is great.

I know you may not have seen your brother's children but it may be worth asking their mother about contact, even if it's only occasional cards. And maybe keeping an ear open if they are really keen/good at an activity but would struggle to pay for it, or will struggle to pay for a school trip?

That's a good idea - thank you. That'd help mitigate some of the disadvantages they're up against now having only one parent engaged with them too, rather than just when they're older. I've met the eldest when they were small, but not the younger two - different mum, but I can't imagine she'd be opposed to the help (hopefully) - so I don't know how best we'd go about that, but maybe we could set some money aside in an account for that kind of thing from now on, with a little chunk when they turn 18. I think we'll send a message to both mums once everything's settled and see how the land lies, and in the meantime speak to a solicitor about the most sensible way to go about it.

Thank you all for your help, it's made a very stressful week or two feel less so!