What does this mean? - Predeceased child of testator

jewellery10

Reading the will I think that the solicitor who drafted the will DID know that a child had predeceased the testator, and was ensuring that the children of the deceased child would inherit their share. The wording is written this way to be a 'standard' conditional clause IF any child had issue. If E or V had also predeceased the testator (without issue), their share would be re-distributed equally between the surviving named child and the issue of the other child who had predeceased her.

jewellery10

Conversely if E or V had predeceased the testator WITH issue, they would inherit their parent's share, along with the other child's issue.

sheramber

Wills are dealt with. Y what is written in them .

Not what somebody thinks the solicitor  meant. 

It sounds as if you do not agree with how the executor is  interpreting the would .

jewellery10

The solicitors acting on behalf of the Executor have interpreted the will incorrectly, and have dispersed the assets recently to E & V only. The will is valid, but the actions of the solicitors are not. A formal complaint has been submitted to the solicitors highlighting their alleged negligence. Waiting for a reply.

silvercar

Now that events have passed we could try to rewrite in a simpler form, calling your late husband H,

"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."

becomes:

“to hold the residue thereof UPON TRUST for my son E and my daughter V in equal shares absolutely PROVIDED THAT  H ‘s issue shall take equal shares of what H would have taken. “

So it hinges on whether ‘absolutely’ or ‘provided that’ take precedent, given that they appear to contradict each other. But I’m not a lawyer. 

jewellery10

The IF conditional clause is a standard clause that deals with the fact if that one, some or all of the testator's children predeceased her, if they had issue, they would inherit their parent's share.

The unusual scenario here is that only one of the testator's children HAD predeceased her with issue before the will was written but the conditional clause still applies.

Consider an alternative scenario, if say V had predeceased the testator with issue as well, what would happen? 

I know what my answer would be, what is your opinion? 

jewellery10

Provided that takes precedence over absolutely. 

silvercar

jewellery10 said:

The IF conditional clause is a standard clause that deals with the fact if that one, some or all of the testator's children predeceased her, if they had issue, they would inherit their parent's share.

The unusual scenario here is that only one of the testator's children HAD predeceased her with issue before the will was written but the conditional clause still applies.

Consider an alternative scenario, if say V had predeceased the testator with issue as well, what would happen? 

I know what my answer would be, what is your opinion? 

Then V’s share would go to their issue. 

jewellery10 said:

Provided that takes precedence over absolutely. 

If that’s true then H’s children take H’s share. But what is H’s share? One third of the estate?

jewellery10

H's issue would inherit a third of the residue estate, shared equally between his children. 

GDB2222

Let me start by saying I'm not a lawyer, but I dealt with many hundreds of wills when I was working in a different capacity. 

The proviso is completely standard wording:
"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."

A solicitor could easily be on autopilot, thinking about his weekend golf, when he included that clause. Or, he may not have been told about the deceased son. The proviso works perfectly when all of the testator's children are alive at the time of drafting the will, and all are intended to benefit. 

I agree that in the particular circumstances the proviso introduces an element of ambiguity.

I think the testator's intention was probably to exclude your children, as otherwise they could easily have been included in the will. (But, I'm not a lawyer.)  

Complaining to the solicitors won't get you anywhere, I feel.  They'll simply say there's been no mistake. But there's no cost to you.

If you want a definitive interpretation of the will, you may have to take the case to court, but then you'll be looking at some pretty huge costs implications.

Can I ask whether you have discussed this with E and V, the named beneficiaries? If they have no children of their own, they may be happy to name their brother's children in their own wills. So, causing a rift with them might be counter-productive?