Understanding my Mum's will

[david_n]

My Mum's will states the following.

3. I GIVE free from any taxes leviable at the date of my death any monies in any bank or building society accounts held in my name with Bank1 Bank 2 Bank3 to such of them my said son Name1 and my said daughter Name 2 as shall survive me and if both in equal shares...[goes on to say what happens if one of us predecease her]

4. If my said husband Name3 shall survive me I give devise and bequeath all my real and personal estate of whatsoever kind and wheresoever situate subject to the payment thereout of my just debts funeral and testamentary expenses to my said husband absolutely and without any sort of trust or obligation.

Her intention is that my sister & I get the money in the Bank accounts in every circumstance and if my Dad is still living he gets the rest.
However clause 4 doesn't say residue, so does it take precedence over clause 3 ?

My mum is still alive, but has dementia so the solicitor that drew up the will won't talk to her and although I have PoA they won't discuss it with me either. My mum still has enough capacity to know what her original wish was when the will was written and wants to make sure that this will be carried out.

Thanks

David

[PallasAthena]

I will be interested to see if any of the lawyers on here have a view on this (I am not a lawyer), it may be that it's something that ultimately a court would have to decide. Are you anticipating there could be a dispute?

I agree with you that the phrase "real and personal estate" in paragraph 4 would probably include the monies in bank accounts dealt with in paragraph 3. I recall from my long ago contract law studies that in the event of ambiguity the more specific clause would be preferred over the more general one, so on that basis I'd expect para 3 to take precedence over para 4. But of course this isn't a contract it's a will and I have no idea if the same principle of interpretation would apply.

Having had PoA for my mother I know that the advice on mental capacity to attorneys is that it is complex and not just a switch that one minute someone has capacity for everything and next capacity for nothing. Dementia doesn't mean that your mother is automatically unable to give valid instructions for a clarification to her will. However you might need to get a community psychiatric consultant to assess her and say that before the solicitor will accept instructions.

[des8]

deleted

[Pezza54]

After the payment of taxes, pecuniary legacies in a will are dealt with next. Pecuniary legacies are gifts of money and would include the credit balances of bank accounts

[david_n]

Thanks for the help. I have now found a letter from the solicitors to my mum from when they drew up the will confirming what her intentions were, which I think will be useful should the meaning ever be contested.