Partial intestacy, Deed of Variation?

[HelpfulFriend]

I am the executor of a will. One of the beneficiaries pre-deceased the testator by six months.

The beneficiary was left a percentage of the residual estate.

There is no provision in the will for the scenario where a beneficiary pre-deceased the testator.

My understanding is that this has resulted in a partial intestacy for this beneficiaries percentage.

The testator left no written instructions on the point of her blood relatives, but I know the testator did not wish any of their blood relatives to inherit. Which I understand would happen in the case of partial intestacy.

The beneficiary in question is not a blood relative.

There are no blood relatives benefitting in the will.

Could a Deed of Varition be created, to direct the percentage of the deceased beneficiary, to the children of the deceased beneficiary? Which I understand is not automatic, if they are not blood relatives of the testator.

[PallasAthena]

If this is in England,and there are other residual beneficiaries still living then normally the share left to the deceased beneficiary lapses and goes back into the residual estate to be distributed to the remaining residual beneficiaries.

There can be exceptions if the Will specifies otherwise or if the deceased beneficiary was a child of the testator.

[HelpfulFriend]

If this is in England,and there are other residual beneficiaries still living then normally the share left to the deceased beneficiary lapses and goes back into the residual estate to be distributed to the remaining residual beneficiaries.

There can be exceptions if the Will specifies otherwise or if the deceased beneficiary was a child of the testator.

My understanding is that this is not the case, because the residual beneficiaries are all left a percentage.

[PallasAthena]

I am referring to where the residual estate is to shared between the residual beneficiaries.

[HelpfulFriend]

I am referring to where the residual estate is to shared between the residual beneficiaries.

Thanks for your replies, I am no expert at all, but I had gathered from looking at solicitors firms websites, that if the residual beneficiaries are all left a specified percentage in the will, that precludes any redistribution of a pre-deceased beneficiary's percentage to them. And that the predeceased beneficiary's share becomes a partial intestacy.

[atticus]

Of what are the residuary beneficiaries left a percentage? Surely it is a percentage of the residue. If a gift fails, it falls into residue, to be distributed to the residuary beneficiaries.

[PallasAthena]

Bear in mind that a Deed of Variation can only be used by someone who is entitled to inherit (either by the terms of Will or the rules of intestacy) who wants to give up their entitlement and have it paid to someone else. A DoV cannot be used to take away someone's entitlement without their consent.

So if there were an intestacy in this estate the person(s) entitled to inherit under the rules of intestacy would be, broadly, the testator's nearest lving relatives. Many online sites will give you the details. Have you identified who they are? Do you think they would be willing to sign a DoV to give up their entitlement and redirect it in the way you envisage?

[HelpfulFriend]

Bear in mind that a Deed of Variation can only be used by someone who is entitled to inherit (either by the terms of Will or the rules of intestacy) who wants to give up their entitlement and have it paid to someone else. A DoV cannot be used to take away someone's entitlement without their consent.

So if there were an intestacy in this estate the person(s) entitled to inherit under the rules of intestacy would be, broadly, the testator's nearest lving relatives. Many online sites will give you the details. Have you identified who they are? Do you think they would be willing to sign a DoV to give up their entitlement and redirect it in the way you envisage?

Thank you for your reply. Yes I have identified who they are. For reasons I cannot say, the testator had good reason to not want them to inherit anything, but sadly nothing is in writing. My understanding is that if the will had been correctly drafted, it would cover the eventuality of the beneficiary pre-deceasing the testator. But it didn't. So, as executor, I have the task of distribution to someone, which I know would be against the testator's wishes.

[HelpfulFriend]

Of what are the residuary beneficiaries left a percentage? Surely it is a percentage of the residue. If a gift fails, it falls into residue, to be distributed to the residuary beneficiaries.

Thank you for your reply. What you say was my assumption too, until I started reading more deeply into it. All beneficiaries of the estate are left a share as a percentage of the estate residue. The entire estate is the residue, after paying all debts and taxes. So, as I understand it, no beneficiary receives a gift, they are all left a percentage of the residue. In this case, if a beneficiary pre-deceased the testator, their percentage becomes a partial intestacy, if they are not a blood relative of the testator. Their children cannot receive their deceased parents share.

[PallasAthena]

Can you confirm this is in England please (not Scotland, etc)

[HelpfulFriend]

Can you confirm this is in England please (not Scotland, etc)

Yes, it is in England.

[atticus]

Say that there are 4 residuary beneficiaries each receiving an equal 25% share. The gift to one fails. The remaining three each now receive an equal share - which is now 33.3%.

If you disagree, it might be helpful to see (a) the specific terms of the will and (b) exactly what information you are basing your disagreement on. NB what relation was the deceased beneficiary to the testator?

[HelpfulFriend]

Say that there are 4 residuary beneficiaries each receiving an equal 25% share. The gift to one fails. The remaining three each now receive an equal share - which is now 33.3%.

If you disagree, it might be helpful to see (a) the specific terms of the will and (b) exactly what information you are basing your disagreement on. NB what relation was the deceased beneficiary to the testator?

Thanks for your reply. That was my assumption too, at first. I will have to go back to my research and find out where I got my information from.

But to clarify in the meantime: There are four beneficiaries.

All have a different percentage share, of the residue. None of them are blood relatives of the testator.

There is no clause in the will to cover the eventually of any beneficiary pre-deceasing the testator.

[HelpfulFriend]

Say that there are 4 residuary beneficiaries each receiving an equal 25% share. The gift to one fails. The remaining three each now receive an equal share - which is now 33.3%.

If you disagree, it might be helpful to see (a) the specific terms of the will and (b) exactly what information you are basing your disagreement on. NB what relation was the deceased beneficiary to the testator?

This is something I read in "The Gazette"

"For example, someone may have left their estate to several people in varying shares. If one of those beneficiaries has died during their lifetime and no alternative provision has been made in the will, the share to them will fail. As no alternative has been made in the will as to who should benefit in this circumstance, this share falls into intestacy."

Also from "The Gazette"

"Where your estate has been divided into shares to be distributed among various beneficiaries, you will also need to consider what you would like to happen to each share if your chosen beneficiary dies before you. It could be as simple as making provision that any such share will be distributed between the other beneficiaries or given to an entirely different beneficiary."

My take from this is that, in the example you give above, the redirection of a share to the surviving beneficiaries, would only take place if there is a clause in the will to expressly state this. Which, in my case, there isn't.

[HelpfulFriend]

Say that there are 4 residuary beneficiaries each receiving an equal 25% share. The gift to one fails. The remaining three each now receive an equal share - which is now 33.3%.

If you disagree, it might be helpful to see (a) the specific terms of the will and (b) exactly what information you are basing your disagreement on. NB what relation was the deceased beneficiary to the testator?

I cannot at the moment find the quote I was looking for. I have been looking at other law firm sites, and I am seeing different answers. Some agree with you, that a predeceased beneficiaries share just goes back into the residue "pot". But some say that it becomes a partial intestate share. I remain confused at the moment, until I can see specific laws covering this situation.