Thanks for your reply.
The general rule is that if a beneficiary dies before a testator, any gift under the will lapses.
There are important exceptions to this doctrine of lapse:
- Where the gift discharges a moral obligation recognised in the will and that still exists at the testator’s death.
- A statutory saving under section 33(1) of the Wills Act 1837 (the Wills Act) for the issue of the testator.
- Substitutions or alternatives expressly provided for by the testator.
- Accruers in the will which may be express or implied.
In the case of (i), the discharge of a moral obligation, the gift does not lapse because the inference is that the testator intended the gift to pass into the estate of the legatee, in the event of the latter dying first. The scope of this exception from lapse is not entirely certain and may be limited to simply discharging a debt.
The statutory saving in the Wills Act (ii) has wide-reaching implications. Section 33(1) provides that:
a) ‘where a will contains a devise or bequest to a child or remoter descendant of the testator; and
b) the intended beneficiary dies before the testator, leaving issue; and
c) issue of the intended beneficiary are living at the testator’s death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death’.
For example, Tom gifts the residue of his estate to his two sons in equal shares. The eldest son Peter dies before Tom, leaving two children. Section 33(1) Wills Act operates to ensure that the two grandchildren of Tom (Peter’s children) take Peter’s half in equal shares.
Although it is not possible simply to exclude the doctrine of lapse under a will, the testator may of course provide for an alternative in the will so that another legatee or beneficiary takes the gift instead. This could be done by a substitutional gift.
I note you say the Will does not provide for another beneficiary to inherit the deceased beneficiary's share.If so, the share should have passed to the son of the deceased beneficiary.
If this all happened 30 years ago, you/the son may be a little late to do anything about it now.
I hope this assists and sets out the legal position.