What does this mean? - Predeceased child of testator

jewellery10

My Mother-in-Law died in 2022 and the wording of part of her will includes the following

"to hold the residue thereof (hereinafter called "my Residuary Estate") UPON TRUST for such of my son E and my daughter V  as shall survive me and if more than one in equal shares absolutely PROVIDED THAT if any child of mine dies before me or before attaining a vested interest leaving issue who survive me then such issue shall on reaching the age of 18 years take equally the share which his her or their parent would otherwise have taken."

My Mother-in-Law had a 3rd child (my late husband) who predeceased her in 2009.Her will was written in 2011. There are 2 children from my marriage to my late husband, who were both under the age of 18 at the time the will was written.

What do you think should happen with the dispersal of the residuary estate?

Keep_pedalling

Unfortunately for your children it seems your MIL left them nothing and the residue of her estate goes to her 2 surviving children and no one else. 

sheramber

That reads that  the residue is left to.
for such of my son E and my daughter V  as shall survive me

Your husband isn’t mentioned.

Although it says about  the issue if ANY of children share what their parent would have taken, he is not mentioned to take any of the residue. 

It reads like a  badly written will. 

Since she knew your husband had died when the will was drawn up she could have mentioned the children in the will if she wished them to receive anything. 

jewellery10

Yes, the will could have been written in such a way to mention the grandchildren that were alive at the time of the wlll being drafted, but it is worded in this way to cover all bases e.g. if person E and person V were ever to have children and they predeceased my M-I-L.

My late husband could not have been explicitly mentioned as beneficiary in the will as a deceased person (as known as the time of the will being drafted) cannot be named as a beneficiary.

Savvy_Sue

Are you arguing that 

jewellery10 said:

PROVIDED THAT if any child of mine dies before me or before attaining a vested interest leaving issue who survive me then such issue shall on reaching the age of 18 years take equally the share which his her or their parent would otherwise have taken."

means your children should inherit? 

I'm not sure that's how it works. Your late husband was not able to take 'his share', so his portion is not available to his children. He could not have been named as a beneficiary, but they could have been named, and left a third in his stead.

Who drew up this will?

doodling

Hi,

Either the deceased decided to exclude the OP's children from her will, or updating of the will after the OP's husband's death was done very badly and had the same effect (e.g. a reference to the OP's husband was removed from the quoted clause because he had died without the person doing it realising that doing so would also disinherit his children).

Is the OP's husband or his children mentioned elsewhere in the will?

jewellery10

Yes,  the grandchildren to the testator are mentioned elsewhere in the following section of the will 

"IN the event of the failure if the trusts herein before declared in relation to my Residuary Estate by reason that no person takes a vested or indefeasible interest in the capital thereof then subject to the trusts aforesaid and the the exercise of any power hereby or by law conferred upon my trustees my Residuary Estate and income thereof shall be held UPON TRUST for such as my grandson JD and any granddaughter JS as shall survive me and of more than one in equal shares absolutely."

I think that this means if either E or V (who were alive at the time of the signing of the will)  had predeceased the testator and died without issue then the testator's grandchildren would inherit their share as well.

Therefore I cannot see how my MIL would have stipulated that her grandchildren would not inherit through their late father, when the will contains a clause that the grandchildren would inherit through their Uncle and Aunt if they died without issue.

This will was the only will that my MIL had.

Reed_Richards

I think you should seek legal advice on this, but it looks to me as if your mother-in-law regarded your children as a last option and willed that they would only inherit anything if all her other descendants had predeceased her. 

How do your brother and sister in law feel about this?  If they are on good terms they might be willing to sacrifice some of their share of the inheritance to pass on to your children through a Deed of Variation.    

Savvy_Sue

jewellery10 said:

This will was the only will that my MIL had.

And was it written by a 'proper' solicitor? (Rather than a will-writing company.)

I agree you may need legal advice. If I was the executor, I'd have a conversation with whoever drew the will up to see if there are notes about what was intended. Who are the executors? As @Reed_Richards says, a Deed of Variation would be possible. 

jewellery10

Yes, the will was written by a 'proper' solicitor.

I would point out that the testator was in her 80s when the will was made, and died in her 90s. Her children E & V are in their 70s/late 60s and childless (and were at the time of the will being written).

The way the will is structured is to ensure all the testator's children (or their issue) equally receives their share, and if  E and V died without issue before the testator,  their share would go to the testator's 2 grandchildren.

The Executor is E, the Uncle to the grandchildren.

silvercar

jewellery10 said:

Yes, the will was written by a 'proper' solicitor.

I would point out that the testator was in her 80s when the will was made, and died in her 90s. Her children E & V are in their 70s/late 60s and childless (and were at the time of the will being written).

The way the will is structured is to ensure all the testator's children (or their issue) equally receives their share, and if  E and V died without issue before the testator,  their share would go to the testator's 2 grandchildren.

The Executor is E, the Uncle to the grandchildren.

It seems really strange to include the clause “ if any child of mine dies before me or before attaining a vested interest leaving issue who survive me then such issue shall on reaching the age of 18 years take equally the share which his her or their parent would otherwise have taken” given that E and V were both beyond child bearing age and had no children when the will was written. 

I wonder if the solicitor was aware that there was a third child who had pre-deceased her?

As it stands, E and V, being alive, inherit and it would be up to them if they pass something to your children, acknowledging retrospectively that the the grandchildren would have inherited through their father had he been alive. They could do this either as a deed of variation or in their will. Though in both cases you are relying on their good will to do so.