What Nephews Inherit from my Uncles will

pjs493

My husband and I realised that there was this unfortunate clause in our Wills a couple of years after they were made. We made our Wills a few months before we married in contemplation of that marriage. In it everything was to be left to each other, but if we died in an accident together or one of us predeceased the other, the clauses were as follows - the estate to be divided equally between our children (we had no children at the time but intended to start a family), and if that gift failed for the estate to be divided between our nieces and nephews of which there were two on each side of the family when the Wills were written. In other words if we died together without issue our intention was that everything should be split four ways.

Our intention was that nieces and nephews from both sides of the family would benefit equally, but we later found out that only blood nieces and nephews would benefit. By the time we realised the unfortunate wording, we had children of our own so that clause wouldn't come into force unless there was a big accident in which we all died at the same time. The way our Wills were written wasn't want we actually wanted if nieces and nephews were to inherit.

Since my husband died I have written a new Will in which our children are specifically named and if our children and I all die in a plane crash, my sister's children will get my estate. Originally my solicitor wanted to name my sister's children, but as she is still of child-bearing age I was worried about inadvertently excluding another nibling if she decides to have another child. It is now written to ensure any children of hers would share my estate in a disaster clause if my children and I all die at the same time. 

My husband and his brother had a big falling out a year or so before my husband died (I've not even had a phone call from him since my husband died) and I'm sure my in-laws have rewritten their Wills since my husband's death so that their surviving son is their sole beneficiary and my children have now been cut out (previously they said their Wills stated that if either my husband or his brother predeceased them their share would be divided between their children). I believe my sister's Will has a similar disaster clause meaning that my children would inherit if her nuclear family all died in a plane crash or similar.

killerkev

Thanks for all the comments. We have now found a will from 1997 (when his wife was alive) It states everything is left to his wife, if she predeceased him, the estate is to split between all living Nephews and Nieces. Note no MY in the will, so I think he meant just his blood Nephews. Just goes to show how it is important to get will's 100% correct!!

LightFlare

Malthusian said:

WYSPECIAL said:

It is the equivalent of someone leaving everything to their mother then the mother in law claiming that the term mother included them as well.

For what it's worth I agree with this analogy and the common law's interpretation. If my brother-in-law had a child I wouldn't consider them my nephew. He certainly doesn't give birthday presents to my sister's child and I wouldn't expect him to. 

A mother-in-law is not a mother, a brother-in-law is not a brother, a niece-in-law is not a niece. That's probably as remote as a family relationship gets for someone to consider leaving their estate that way; I hope nobody would write "to my cousins equally". 

Interesting -- My wife refers to my sisters sons and daughters as Nieces and Nephews and she has always been referred to as Auntie by them

If my sister-in-law (wife's sister) had children - I would def refer to them as Niece/Nephew

Spendless

killerkev said:

Thanks for all the comments. We have now found a will from 1997 (when his wife was alive) It states everything is left to his wife, if she predeceased him, the estate is to split between all living Nephews and Nieces. Note no MY in the will, so I think he meant just his blood Nephews. Just goes to show how it is important to get will's 100% correct!!

So he had a will but his wife didn't, you put earlier she died without a will? I'd have thought that unusual. Whatever he actually meant and no-one is going to know for sure, as the law stands it's just the Uncle's nephews that inherit. 

Notepad_Phil

killerkev said:

Thanks for all the comments. We have now found a will from 1997 (when his wife was alive) It states everything is left to his wife, if she predeceased him, the estate is to split between all living Nephews and Nieces. Note no MY in the will, so I think he meant just his blood Nephews. Just goes to show how it is important to get will's 100% correct!!

Surely if there is no MY in the will then that would tend to mean that he meant all of his and his wife's nephews, not just his.

LightFlare said:

Malthusian said:

WYSPECIAL said:

It is the equivalent of someone leaving everything to their mother then the mother in law claiming that the term mother included them as well.

For what it's worth I agree with this analogy and the common law's interpretation. If my brother-in-law had a child I wouldn't consider them my nephew. He certainly doesn't give birthday presents to my sister's child and I wouldn't expect him to. 

A mother-in-law is not a mother, a brother-in-law is not a brother, a niece-in-law is not a niece. That's probably as remote as a family relationship gets for someone to consider leaving their estate that way; I hope nobody would write "to my cousins equally". 

Interesting -- My wife refers to my sisters sons and daughters as Nieces and Nephews and she has always been referred to as Auntie by them

If my sister-in-law (wife's sister) had children - I would def refer to them as Niece/Nephew

The same goes for our family too - I'd definitely say I had 9 nephews and nieces though less than half of them are from my siblings.

Spendless said:

killerkev said:

Thanks for all the comments. We have now found a will from 1997 (when his wife was alive) It states everything is left to his wife, if she predeceased him, the estate is to split between all living Nephews and Nieces. Note no MY in the will, so I think he meant just his blood Nephews. Just goes to show how it is important to get will's 100% correct!!

So he had a will but his wife didn't, you put earlier she died without a will? I'd have thought that unusual. Whatever he actually meant and no-one is going to know for sure, as the law stands it's just the Uncle's nephews that inherit. 

Though a deed of variation could be considered by the blood relatives (assuming there are no minors) so that the extended family is brought in as well. It's certainly something I would do if this or a similar matter came up in our family.

silvercar

WYSPECIAL said:

killerkev said:

In My Uncle's will, it states all my living Nephews shall inherit an equal share of my Estate, there are 5. His wife died years ago without a will. The 3 Nephews on his wife's side say they should be entitled to a share as well, so 8 equal shares. I am not sure if that is correct?

Any help would be most welcome, as I don't want to do the wrong thing!!

They aren’t his nephews.
It is the equivalent of someone leaving everything to their mother then the mother in law claiming that the term mother included them as well.
If he intended to include them then it is a poorly worded will.

I disagree with this. Parents have a special relationship over in-laws, in that they brought you up and the in-laws didn’t feature significantly in your life until adulthood.

Niblings (I’ve learnt a new word!) could be of similar standing on either side of the family and after a partnership that amounted to decades, I wouldn’t have thought ruling out one side on the basis of who dies first (which effectively what happens if each person talks about their niblings) is unfair. 

msb1234

Sadly there are several cases where wills have been contested for precisely this reason. In this link, the courts determined that nephew and niece did in fact include those of one’s spouses siblings  as well as children of one’s own siblings. Where there is not clear proof that he did in fact mean just his siblings offspring, then the executor may well have to include all nephews / nieces of the marriage, particularly as he inherited all of his wife’s estate.
https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102gfmg/what-does-nieces-nephews-even-mean-construction-of-wills-wales-v-dixon-20

LightFlare

msb1234 said:

Sadly there are several cases where wills have been contested for precisely this reason. In this link, the courts determined that nephew and niece did in fact include those of one’s spouses siblings  as well as children of one’s own siblings. Where there is not clear proof that he did in fact mean just his siblings offspring, then the executor may well have to include all nephews / nieces of the marriage, particularly as he inherited all of his wife’s estate.
https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102gfmg/what-does-nieces-nephews-even-mean-construction-of-wills-wales-v-dixon-20

Since that is the company that drew up the will, then it would be tough to dispute the interpretation (I think)

Malthusian

msb1234 said:

Sadly there are several cases where wills have been contested for precisely this reason. In this link, the courts determined that nephew and niece did in fact include those of one’s spouses siblings  as well as children of one’s own siblings. 

They did in that case, but note this part of the judgment (which supports the article by SP Law cited on page 1):

"In Re Daoust [1944] 1 All E.R. 443, Vaisey J. stated at page 444... Unless compelled by context or circumstances, the court will always construe a class gift to nephews and nieces as a gift confined to children of a brother or sister, and the mere fact that the testator or testatrix has chosen elsewhere in the will erroneously to describe as a nephew or niece some person not strictly and properly so related to him or her, will not affect the general rule by admitting that person into the class." [emph added]

In Wales v Dixon the judge was compelled by context and circumstances. They noted that the deceased and his late wife (who predeceased him) had previously made mirror wills which explicitly and unambiguously left the estate of whoever died second to both their niblings and the spouse's niblings. 8 months after the late wife's death, that Will was replaced by a new Will which shifted the inheritance down a generation, leaving the estate to "all of my nephew's and niece's children". (The position of the apostrophes was an error of no significance as there were multiple nephews and nieces on the blood side alone.) The judge took the view that there was no evidence that the deceased intended to exclude the late wife's family.

Where there is not clear proof that he did in fact mean just his siblings offspring, then the executor may well have to include all nephews / nieces of the marriage, particularly as he inherited all of his wife’s estate.

No, Re Daoust (cited in Wales v Dixon) says the complete opposite. 

If there is doubt it would highly advisable to take legal advice, and the advice may be that the executors should apply to court for a declaration (as the executors in Wales v Dixon did).

killerkev said:
Thanks for all the comments. We have now found a will from 1997 (when his wife was alive) It states everything is left to his wife, if she predeceased him, the estate is to split between all living Nephews and Nieces. Note no MY in the will, so I think he meant just his blood Nephews. Just goes to show how it is important to get will's 100% correct!!

So if he predeceased her, then the position as it stood was that his nephews and nieces would get nothing, since she didn't make a Will and niblings-in-law would get nothing under intestacy?

In your position I would definitely be taking legal advice. I would also contact Irwin Mitchell and ask for any records they have, such as file notes from conversations with the deceased, that may shed light on whether he intended niblings-in-law to be included. Any such notes would be admissable as evidence of the deceased's intentions.

It would be ironic if Irwin Mitchell drew up a Will that left the position ambiguous even though they have an article on their own blog warning people about doing exactly that.