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help with will please

(4 Posts)
3bunnies Mon 29-Oct-12 11:14:09

I posted about this issue a few months ago, but now have the relevan will, I think. My MIL died about 10 years ago, I have her will dated 20 years ago, I strongly suspect that FIL still has the mirror will prepared at the same time, before grandchildren. My question is whether if dh died before FIL - which is hopefully unlikely and hopefully will never be an issue - whether our children (FIL grandchildren) would inherit dh's portion or if it would all pass to his brother. His brother is, and looks likely for the foreseeable future, childless but married.

The (hopefully) relevant clause in the will is 'to divide the residue ('my residuary estate') equally among such of my sons namely DH name and BIL name as survive me' and 'any person who fails to survive me for a period of thirty days shall be deemed to have predeceased me and the provisions of this will shall be construed accoordingly'

I don't think FIL will buy into a complicated rewriting of his will, but I think he would see the logic, if needed of a new, simple will which leaves money to each son equally and should either son die first for their share to pass to their heirs, if the current will does not currently do that. Any advice on whether the current will would do that would be welcome. Thanks.

mumblechum1 Mon 29-Oct-12 11:21:30

The wording which means that your dh's share passes to your children is:

"to such of my children (dh and bil names) as shall survive me and if more than one in equal shares BUT if either of them die before me leaving a child or children then those children shall take my deceased child's gift and if more than one in equal shares".

The wording may not be exactly the same as this but this is the gist.

3bunnies Mon 29-Oct-12 11:24:08

So with the current wording will it all go to BIL if DH died first?

emsyj Mon 29-Oct-12 21:51:58

It is impossible to advise properly without seeing the full text of the Will. Section 37 of the Wills Act provides that, unless there is a contrary intention shown by the Will, a gift to issue will automatically pass to their issue per stirpes ('according to the root') if they predecease - which means that grandchildren (and great grandchildren and so on) would inherit if the children died first.

Trying to put this simply (despite tiredness and pregnancy brain): unless the Will shows that the testator had some other intention for what should happen (e.g. it makes provision for who gets the share if the child dies before them, such as 'if my son Billy dies before me his share is to go to Battersea Dogs' Home') then a gift to a child will pass to the grandchildren if the child dies first. So if Joe Bloggs died having had 3 children, one of whom predeceased, and each of those 3 children had 2 children of their own, and the Will said the estate was to be divided equally among his children, it would be divided into 3 and the 2 surviving children each get their 1/3 share and the final 1/3 share is divided into two between the deceased child's children. Does that make sense? confused

But it is not possible to say if this will apply unless you get someone suitably qualified to look at the whole content of the will. I wouldn't feel competent to advise whether a Wills Act claim would succeed to be honest, as I've never advised on what a 'contrary intention shown by the will' would amount to.

I didn't see your previous thread so I am not aware of the background here.

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