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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10459
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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If in a will money is left to children, grandchildren and

Customer Question

If in a will money is left to children, grandchildren and great grand children is a great grand child born 4 months after the great grandfather died eligible for a share of the money?
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.


A legacy in the Will covers only those descendents born during the deceased's lifetime. Hence the great grandchild born after their great grandfather's death would not be entitled to any legacy.

Only if great grandfather had set up a trust within his Will, to cater for all current and future great/grandchildren would any children born after his death be entitled to benefit.

I hope this assists and sets out the legal position.

Kind Regards


Aston Lawyer and other Law Specialists are ready to help you
Customer: replied 1 year ago.
does the following have any standing following your original answerQuestion
A will that contains a gift of money to the testator's great grandchildren in equal shares absolutely. There are five great grandchildren: four who were born before the testator died, and a fifth who was born three months after he died. Should the executors divide the money between all five great grandchildren or only the first four?
A question of construction: general rule and exception
The question of whether children conceived but not born (or en ventre sa mère) at a specified time are included in a gift under a will or a trust depends on the construction of the instrument concerned (which may be a will, a trust document or a deed of appointmentor advancement).
The House of Lords has provided the following guidance about construing gifts of this type:
• The general rule is that expressions referring to beneficiaries who:
o survive another person;
o are living at a specified time;
o are born before a specified time; or
o are born during a specified period such as a person's lifetime
do not, in their ordinary or natural meaning, include a child conceived but not born at the specified time (or during the specified period).
• As an exception to the general rule, however, it is possible to depart from the ordinary or natural meaning of these expressions and apply a fictional construction to them so as to include a child conceived but not born at the specified time if:
o the child is later born alive; and
o doing so will give the child a benefit to which the child would have been entitled if actually born at the specified time.
(Elliot v Joicey and others [1935] AC 209.)
There must be a direct benefit to the child under the terms of the instrument
The reason for making an exception and applying the fictional construction to a gift is that the child conceived but not born at the specified time is "within the reason and motive of the gift".
In Elliot v Joicey, the House of Lords made clear that for the child to be within the reason and motive of the gift there must be a direct benefit to the child under the terms of the instrument that is being construed and as a result of applying the rule. If there is only an indirect benefit that depends on future events, the exception does not apply and expressions concerned bear their natural meaning.
In the leading judgment, Lord Russell of Killowen referred to a number of longstanding authorities where the fictional construction had been applied to allow a child conceived but not born to benefit under:
• A gift in a marriage settlement to children of the marriage living at the death of the father (Millar v Turner (1748) 1 Ves Sen 85).
• A trust for a man for life with remainder to his children living at his death (Doe v Clarke (1795) 2 H Bl 399).
• A gift in a will to the children of a named individual who were born during the lifetime of the testatrix (Trower v Butts 1 S & St 181, which he expressly approved).
It is important to note that considering the reason and motive of the gift does not mean that the court can simply interpret the will to give effect to what the testator would have wanted (see, for example, Benefit to the child's parent is not sufficient).
Benefit as a member of a class and contingent benefit are sufficient
For the fictional construction to apply, it is sufficient for the child to benefit as a member of a class and for the benefit to be contingent(Pearce v Carrington (1873) LR 8 Ch 969). A testator created a trust for his daughter's children at 21, but included a gift over to other beneficiaries if his daughter survived his wife for five years and had not had any children at that date. On the fifth anniversary of his wife's death, his daughter was pregnant with her first child. The court applied the fictional construction to save the gift for a class of beneficiaries to which the unborn child would belong when born.
Benefit to the child's parent is not sufficient
A gift to a child's parent is not a direct benefit to a child under the terms of the instrument, because the parent may dissipate the assets or leave them to somebody else (Elliot v Joicey). Mrs Elliot exercised a power of appointmentunder her father's will to create trusts for her three sons. The trusts gave a right to income to her sons for the 21 years following her death. If a son died within that period without exercising his own power of appointment, there was a default gift to the son absolutely if he left issuewho survived him with a gift over to her other sons if he did not leave issue who survived him. Her son Thomas died before the end of the period and his wife gave birth to a child shortly after his death. The House of Lords held that there was no direct benefit to Thomas's posthumous child, so the exception to the general rule did not apply and the gift over to his brothers could take effect.
This is an example of a case where Mrs Elliot might well, if asked, have wanted the gift to