Who are the residual beneficiaries?

[Jewellery10]

Testator M had 3 adult children E, D and V.

D died before his mother M, leaving issue (2 children JD and JS).

M then writes her will when she is in her 80s with the following paragraphs included

"to hold the residue thereof... 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 had taken

IN the event of the failure of 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 to the exercise of any power hereby or by law conferred upon my Trustees my Residuary Estate and the income thereof shall be held UPON TRUST for such of my grandson JD and my granddaughter JS as shall survive me and if more than one in equal shares absolutely"

At the time the will was written, E was in his 60s and childless and V was in her late 50s and childless.

M's husband R, dies before her and his will leaves everything to M if he should die first.

The 2 grandchildren from D were both under 18 at the time M's will was written.

Who are the residual beneficiaries?

A will.becomes active on death not signing. I'd say the beneficiaries are her two surviving children and sadly because of the way the will is drafted with no mention of D then there's no prospective share for his children to have in his stead. The grandchildren only benefit if both E and V predeceased. Shame as presumably that wasn't the testators intention.

Much of the detail given is irrelevant. If that is the correct wording, E and V are the residual beneficiaries. If either of them died before M, their share goes to their children (if any). JD and JS only benefit if E and V predecease M and don't have any children.

@Jewellery10 E and V could each independently voluntarily do a deed of trust and give up part of their inheritance to JD and JS.

If I was E or V with no DC I would look at my own situation regarding IHT and possibly consider this. However, I also understand why E and V might need the money themselves with no DC to care for them in old age.

Is M still alive? If so, the will hasn’t become ‘active’ yet?

If M is deceased who wrote the Will? Could it be said that M did not have capacity when she signed the Will or that the Will writer did not follow her instructions?

The best outcome would be that the surviving children do a deed of variation to pass a share of the estate onto the grandchildren.

If you are an executor of the Will make sure you instruct a specialist probate solicitor as lay executors are personally liable if they make mistakes with things such as who gets what from the Will and the executor gets it wrong or if they do not pay enough IHT.

The testator M, has died.

I would suggest that the will writer who drafted the will may have used a "generic" catch all conditional clause that would cover all/any of the testator's children pre-deceasing her, as the clause says "...if ANY child of mine dies before me..." It does not say "any AFOREMENTIONED, or any SUCH..."

There is no contrary intention stated in the will to specifically EXCLUDE the issue of the pre-deceased child. I would suggest that the conditional clause reflects Section 33 of the Wills Act 1837.

Wills Act 1837

The solicitors who have done the work in dispersing the residual estate appeared not to understand this legislation, and will not consider that perhaps they have not carried out the testator's instructions.

The Executor has not contacted the grandchildren since the testator's death, and appears to refuse to engage in any way to consider reviewing the testator's case file to verify what records were made about the testators intentions and instructions.

What are the next steps to challenge the actions of the Executor and the solicitors acting for them?

Unfortunately the Will is very clear. S33 acts to give the children of a child of the testator that has predeceased the testator their prospective share that they would have otherwise received.

Unfortunately in this case there is no "prospective share" as the testator did not mention D in the Will. She only left a gift to her remaining children. Only if both her children also predeceased her will the grandchildren inherit.

The relevant wording is "if any child of mine dies before me ..... leaving issue such issue shall ....take ...the share which his her or their parent would otherwise had taken
Sadly there's no such share as M didn't leave anything to D.

You could try and contest the will on the basis of mistake. Consult a contentious probate solicitor.

The issue here is whether solicitor in drafting the will has excluded D and his issue by mistake, or whether the testator actually did want to specifically exclude her grandchildren.

I suspect the answer is in the case file, but the solicitors and the Executor are completely refusing to reply to a Larke v Nugus request for documents from the file. No response has been made re: the suggestion to go to mediation. The brick wall has been put up and verifying the facts in an open and transparent manner appears to be a challenge.

What are the next steps available to obtain these documents?

Has anyone any experience of such a situation?

It diesn’t matter whether the solicitor has. Missed out D. Before M signs the will, she has a duty of care to read through and check it, and spot any mistakes. By signing the will, surely she has agreed to its contents.

(not a lawyer).

How should the will have been written to include D (who was already dead) and his issue, whilst also not excluding E & V (and their potential issue)?

It was not difficult to write the will to include D's children. It could, for example, have said, "to hold the residue thereof... UPON TRUST for such of my children 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 had taken"

But that isn't what happened. And I agree with @Leavesfalling that, given the wording you have reproduced here, the Wills Act is irrelevant.

If E and V are happy for D's children to inherit one third of the estate between them, the simplest way forward is for them to execute a deed of variation provided it is less than two years since M died. That would be simpler and less risky than trying to go after the solicitor who drew up the will. However, if it is more than two years or one of E and V is unwilling to share the inheritance, you do need to pursue the solicitors who drew up the will to see if it genuinely reflected M's wishes.