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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Hi Good morning, My mum has died and left a will which states

Customer Question

Hi Good morning,

My mum has died and left a will which states everything to my sons absolute. One of the 6 sons has died before her does his son get anything from the will.
Submitted: 3 years ago.
Category: Family Law
Expert:  Thomas replied 3 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

It depends on what the Will says basically.

If the Will states that something along the lines of that your mother left her estate to her children but:
“..PROVIDED THAT if any child of mine shall predecease me but leaving a child or children living at my death such grandchild or grandchildren of mine shall take absolutely..”

Then this would mean that the child of your mother’s son who died before her would inherit the deceased’s son’s share.

If there is no clause or no similar clause then the deceased’s son’s share would fall back in to the residuary estate and the other sons would inherit it.


My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom
Expert:  Clare replied 3 years ago.
Hi
Since the deceased was your sons Grandmother S33 of the Wills Act applies and his son will receive the legacy left to your son
Clare
Customer: replied 3 years ago.

Hi this is different from the answer above so which is it?


 


My mother died and left in her will all estate to her sons absolute. However one of the sons has died prior to her death. He has a living son does he recieve 1/6 of the estate?


 


The other responce I recieved was


 


It depends on what the Will says basically.

If the Will states that something along the lines of that your mother left her estate to her children but:
“..PROVIDED THAT if any child of mine shall predecease me but leaving a child or children living at my death such grandchild or grandchildren of mine shall take absolutely..”

Then this would mean that the child of your mother’s son who died before her would inherit the deceased’s son’s share.

If there is no clause or no similar clause then the deceased’s son’s share would fall back in to the residuary estate and the other sons would inherit it.
so which is it?

Expert:  Clare replied 3 years ago.
Hi
I am sorry for any confusion - the provisions of S33 of the Wills Act 1837 are so rarely referred to that they can be overlooked
The Section means that unless the Will States that children can NOT be substituted then they will be
You can read it here
http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/33
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34105
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 3 years ago.


Hi me again.


 


Sorry but I think you may be wrong in my mothers will all boys are named by name so I believe the rulling by Mr John Baldwin QC Ling v Ling makes it clear that S 33 will not apply.


 


Or have I got this wrong

Expert:  Clare replied 3 years ago.
Hi
That case related to Class gifts and was decided by Judge Etherton
However if you care to reproduce the exact wording of the gift I will certainly look at it for you
Clare
Customer: replied 3 years ago.

Sorry I may have given the wrong information


 


I am referring to


 


A residuary clause in a will showed sufficient contrary intention to exclude the application of section 33 of the Wills Act 1837. This
meant that the issue of a predeceased child of the testator did not benefit. (Rainbird and another v Smith and others [2012] EWHC 4276
(Ch).)


 


Facts
Mrs Leader executed a will leaving the residue of her estate to her three daughters in the following terms:
"I give my estate (including any property over which I may have general power of appointment or disposition by Will) to my
Trustees Upon Trust ... (c) subject thereto hold the residue remaining and the income thereof ("my Residuary Estate") UPON
TRUST for such of them my Daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES of [address] and
GWENDOLINE SMITH of [address] as shall survive me and if more than one in equal shares absolutely."
One of the daughters predeceased Mrs Leader. Mrs Leader's executors asked the court to rectify the will using its powers under section
20 of the Administration of Justice Act 1982 on the grounds that the will failed to carry out their mother's intentions because of a clerical
error.
Decision
The judge, Mr John Baldwin QC (sitting as a deputy judge) held that it was necessary to construe the will first before deciding whether it
was necessary to rectify it. Having construed the will, the judge found the following:
The words used for the residuary gift were sufficiently clear to show that the testatrix intended to leave her estate only to those
daughters who survived her. If the testatrix had wanted the children of predeceased daughters to benefit she would not have qualified the
gift to her three named daughters with the words "... such of them as shall survive me" but would simply have made the gift "to my
daughters, A, B and C".


 


My mothers will names the sons by name and ends the paragraph with the words in equal shares abolutely.


 



 

Expert:  Clare replied 3 years ago.
Hi
And does that include the words "as shall survive me"?
Clare

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