Benificiary dies before testator dies

[Widow Twanky]

I have an aunt who made a will in 2012 and she died in 2017,and left £5,000 to my cousin, however he became ill and died in 2015. She never changed her Will.. The Will states "I give the sum of £5,000 to XXX of No. XX, XXX Street, XXX." There is no condition such as "provided he is still alive" attached to this line. My understanding is that in such a situation the monies left to that beneficiary should be distributed in equal shares to his two sons. Am I right??

[dslippy]

No, the other way around. The will speaks from the date of death, and the gift is lapsed.
As you suggest, this ccan be changed by the terms of the will.

[Hagalout]

But if its their own child or "remoter issue" then it doesn't lapse according to Gov. Uk.
Is that right Slippy?

[atticus]

please quote the precise provision of the Will IN FULL.

[dslippy]

Yes, the latest addition in wording is not obviously consistent with the first.

[Manxman]

Yes, the latest addition in wording is not obviously consistent with the first.

I don't think the wording has changed? (If you were replying to Hagalout, they aren't the OP... )

[Hagalout]

Yes thanks Manxman, I was just asking the question as I have been involved with something similar, but the beneficiary who died before the Testator was his daughter, I think perhaps there is a difference as opposed to a friend or more distant relative. But I still think the wording on the gov.Uk website needs maybe updating as it states that a will worded " children as are alive at my death" would overide sect 33 but it is my understanding that in a more recent case the judge found that wording or similar to be insufficient to overide the rule. But probably none of it applies in the OP's case

[Widow Twanky]

please quote the precise provision of the Will IN FULL.

Hello, Thank you for your interest. The testatrix was an aunt to the person who died on 2015. So he was her nephew. I have attached the will as attachments 1.2.3.4 and obliterated the names and addresses for obvious reasons.

[atticus]

I can see no saving provision in respect of the gift in clause 4, which appears to have lapsed on the death of the named beneficiary.

[Manxman]

Yes thanks Manxman, I was just asking the question as I have been involved with something similar, but the beneficiary who died before the Testator was his daughter, I think perhaps there is a difference as opposed to a friend or more distant relative. But I still think the wording on the gov.Uk website needs maybe updating as it states that a will worded " children as are alive at my death" would overide sect 33 but it is my understanding that in a more recent case the judge found that wording or similar to be insufficient to overide the rule. But probably none of it applies in the OP's case

My understanding is that s33 of the Wills Act only applies to gifts to "a child or remoter descendant" of the testator. So if a gift is left to a child of the testator, but they pre-decease the testator, then the gift will pass to any of their children alive at the testator's death. Otherwise it will lapse.

In this case I assume it lapses because the beneficiary is not a descendant of the testator. But I'm no lawyer so I may be wrong...

(Your intervention seems to have inadvertantly thrown the thread a bit off course!)

[Hagalout]

Apologies. I was temporarily drawn in by Dslippy's first answer until I realised. But Atticus has answered you in any case.

[Hagalout]

Apologies again Manxman, I thought I was replying to the original poster there, thanks anyway

[Widow Twanky]

I can see no saving provision in respect of the gift in clause 4, which appears to have lapsed on the death of the named beneficiary.

Thanks Atticus.
The will does not have any conditions in it relating to the nephew having to be alive at the time of the Testarix's death.
It is confusing as I looked at the Administration of Justice Act 1982 and found this..


[Where—

(a)a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator (Nephew is a remoter descendant of the testatrix); and

(b)a member of the class (Nephew) dies before the testatrix, leaving issue (Nephew’s offspring); and

(c)issue (Nephew’s offspring) of that member are living at the testatrix’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included the issue (Nephew’s offspring) of its deceased member living at the testatrix’s death.

(3)Issue (Nephew’s offspring) shall take under this section through all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent (Nephew) would have taken and so that no issue (Nephew’s offspring) shall take whose parent (Nephew) is living at the testatrix’s death and so capable of taking.]

Has this legislation been superseded or am i interpreting t wrongly?

[dslippy]

It is not a bequest to a class. it is a gift to named person.I think it lapsed

[atticus]

a nephew is not a descendant, and therein lies your problem.

A remoter descendant is a grandchild, great grandchild etc.