Wording Help - late mothers will

[mrsc81212]

My mother passed away in April, her husband, the sole executor is dealing with the administration of her estate. The Will and a clause in it placing her share of the property into trust for myself and my 2 sisters (we were minors when the will was drawn up in 1997) this has been checked and is registered correctly with land registry etc. sadly my eldest sister passed away in 2018, before my mother. The wording is very specific and states the following

‘shall hold my share or interest in the net proceeds for such of my daughters (name) (name) and (name) who shall be living at my death and reach the age of 21 and if more than one ni equal shares’

what does this team for my late sisters share? Does this get redistributed to my surviving sister and I or does her share fall to my niece? There is no wording about ‘issue’ or any mention other than the above about if one of us pre deceased her. I am getting conflicting info so would be good to have a definitive

[des8]

Condolences on your loss.

Not surprising you have received conflicting advice, as there are seemingly contradictory court cases on this very point.
Ling v Ling [2002] WTLR 553 ChD and Rainbird and another v Smith and others [2012] EWHC 4276 (Ch),

You don't say what outcome you and your sister are looking for, or if there is any family dispute.
if you want you could agree to clarify the will by a letter confirming you want your niece to inherit your late sister's share
This would avoid family feuds and possible costly court action

Doubtlessly others will have comments for you

[atticus]

s33 Wills Act 1837 provides that gifts in wills to children of the testator who predecease the testator pass to the children of such children.

[HariSeldon]

s33 Wills Act 1837 provides that gifts in wills to children of the testator who predecease the testator pass to the children of such children.

Part 1 of Section 33 specifically states "unless a contrary intention appears by the will" and to my mind "who shall be living at my death" is a very clear contrary intention to the gift passing on to the children of the children.

As des8 mentioned, what would you like to happen? If you all want your niece to have your elder sister's share then you can complete a Deed of Variation to enable this. Otherwise if one or more of you want your elder sister's share for themselves then legally that's what should happen.

[atticus]

HariSeldon - fair point

[des8]

The wording of the will in this case "who shall be living at my death " might be taken to be such an exception, but doesn't it depend on the construction
a judge would put on it.

There have been seemingly contradictory findings.

A minefield for the layman, an earner for the lawyers arguing the matter?

I wonder if the will excludes s33 in a subsequent clause

[HariSeldon]

A minefield for the layman, an earner for the lawyers arguing the matter?

Agreed. Who gets what could be a moot point if the lawyers end up being a significant beneficiary to the mother's estate...

[Hagalout]

I was involved with a will with such wording(as shall survive me, etc) and was told by two different solicitors that this was sufficient contrary intention. The solicitor I used warned off the Caveator(Predeceased daughters son), quoting "Rainbird v Smith" The Caveator entered an appearance and the Caveat became permanent. Twelve months on and my Solicitor then informed me of the case of "Hives v Machin" which apparently set a new precedence, with The Caveator now benefitting from the will, the dispute is still ongoing.
My questions regarding this are: 1.should it not matter what the precedence was when the will was written? Or 2. When the Testator died? After all the Caveator shouldn't be able to simply enter a Caveat and hope at some stage the law might change in their favour.
The lesson learned in my case is to make sure the will is cast iron and make your intentions clear ie exclude S33 to avoid any dispute.
Of course this won't help the original poster like it didn't help me either.