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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9866
Experience:  I have been practising for 30 years.
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My late uncle who died in 2013 left his estate to his two

Customer Question

Hi
My late uncle who died in 2013 left his estate to his two cousins my mother and her brother.
They both died before my uncle died but he never changed his will. The solicitors who are dealing with his estate and conducting the probate went along the lines of forming a family tree to disperse the estate. With this in mind my Mother had 5 siblings and her brother had 2 siblings. In your opinion has this solicitor followed the correct procedure in carrying out this probate as I have just come across section 33 of the wills act 1837.
This is still ongoing and not yet been finalised which has been ongoing for five years since his death.
Your opinion would be most appreciated.
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

Thank you for your question - you say your mother had 5 siblings and her brother 2 - do you mean children?

Customer: replied 5 months ago.
that is correct. Each parent also made wills leaving their estates to their own children.
Customer: replied 5 months ago.
The solicitor created a family tree which also included an additioal two beneficiaries who have made a claim on his estate. So in total there are now Nine Beneficiaries rather than seven.
Expert:  F E Smith replied 5 months ago.

Thank you.

Section 33 of the Wills act states that if someone leaves a person something and that person has predeceased the person who wrote the will but the predeceased person left children then the children inherit the share which their parents was inherited.

BUT there is case law relatively recently (2012) https://uk.practicallaw.thomsonreuters.com/5-532-3993?__lrTS=20170405220113326&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

which states that if someone leaves in there will be quests or residue to A, B and C and does not express the wish that if they leave children the children shall inherit, that shows intention to exclude section 33 of the Wills act. I do not agree with that decision because section 33 was always made so that the default situation was that children inherited the share of their deceased parent. So it depends on the exact wording of the will as to whether the children should inherit the deceased parent share or not

Can I clarify anything for you?

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FES.

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Customer: replied 5 months ago.
Thanks for clarifying that point. Were they correct in forming a family tree to disperse the estate and should that have been dispersed into even shares. As at the moment it has been shared three ways, eg one share to my Mother's children (5), one share to my Uncles children (2) and one share to the other party (2).
Customer: replied 5 months ago.
Hi
Not sure ifyou have had time to look at above question, would be obliged if you could answer it.
Many Thanks
Expert:  F E Smith replied 5 months ago.

Here is the statutory provision http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26

S33 applies in respect of gifts to children and remote descendants who predeceased the testator. If the child or remote a descendant of the person who wrote the will predeceased the person writing the will (the testator) and leaves children themselves, then section 33 applies unless it is specifically excluded.

It doesn’t apply to gifts to other random people, only to children of the testator and remote descendants.