Predeceased child before will written

[Jewellery]

I am the mother of the grandchildren, widow to D.

M, the testator died in 2022. The distribution of the residue only took place in the past couple of months as far as can be ascertained, as the Executor, my brother-in-law has not contacted his nephew or niece during that time.

My son did contact his Uncle a few months after the testator's death, but the Uncle did not take up any offers of help. That phone number was disconnected. He did give his Uncle his contact details.

As beneficiaries of the testator's will, the children were not informed as to the exact contents of the will, and they only found out by ordering a copy recently.

The delay in distributing the estate is believed partly due to issues with the sale of the family house, and issues with an Irish estate to which M was a beneficiary.

[atticus]

What alternative method/technique/phrase should be used to ensure that the issue of predeceased children of the testator should inherit their parent's share? As one cannot specifically name a deceased person as a beneficiary in a will, what wording should be used to include the predeceased child in this instance, but without excluding the other children who may or may not predecease the testator?

Your children could easily have been specifically named. Do you have any idea why their grandmother did not make greater provision for them?

[Jewellery]

Reading the will I can only surmise that she took advice from her solicitor and perhaps agreed without any full understanding. She was 83 at the time, and not in anyway derogatory be described as highly educated.

As yet, there has been no logical explanation put forward as to why the conditional clause "provided that ANY child of mine predeceases me with issue..." inheriting a share of the residual estate does NOT apply.

I am convinced that it does, and the grandchildren are entitled to a 1/3 share between them.

What logical counter argument can be put forward? Any precedents or case law to consider?

[Jewellery]

What evidence is required to show what the testators intentions and instructions were? How do the grandchildren obtain this evidence to challenge the execution of the will?

The testator had a husband who made his will at the same time (2011). He died in 2015 but his will never went to probate.

Is there anyway the grandchildren can get to see that will, and the evidence to show what his intentions and instructions were?

[Jewellery]

Follow on from my previous post, the husband of the testator M, was 87 at the time his will was written.

What specific "duty of care" processes must a solicitor follow and evidence with regards to elderly clients?

[HariSeldon]

What alternative method/technique/phrase should be used to ensure that the issue of predeceased children of the testator should inherit their parent's share?

By using the same method that was used for the small pecuniary gifts you mentioned which presumably was by specifically naming the grandchildren.

As yet, there has been no logical explanation put forward as to why the conditional clause "provided that ANY child of mine predeceases me with issue..." inheriting a share of the residual estate does NOT apply.

Because the clause you quoted doesn't say "issue... inheriting a share of the residual estate", it specifically names E and V and specifically says issue will "take equally the share which his her or their parent would otherwise had taken". D was not named in the will and so had no share to otherwise take...

What logical counter argument can be put forward?

If you challenged the will, the logical counters to your argument are:

1. The clause you quote states "IF any child of mine..." Regarding D there was no "if" as he had already died which M obviously already knew so why would M say "if" if they meant that to include the already deceased D? The logical answer is that the "if any child of mine" only relates to E and V, and M could have specifically named D if that was the intention.
2. Even if you disagree and "if any child of mine" was to include D then the full clause says the grandchildren will "take equally the share which his her or their parent would otherwise had taken". D was not named in the will so there was no share to otherwise take.
3. The grandchildren weren't simply forgotten as they were left pecuniary gifts which suggests that was M's intention.

I completely understand why you wouldn't be happy how this has turned out but sadly I think you have little chance of convincing a court that your children are entitled to a share of M's estate.

[Jewellery]

By using the same method that was used for the small pecuniary gifts you mentioned which presumably was by specifically naming the grandchildren.



Because the clause you quoted doesn't say "issue... inheriting a share of the residual estate", it specifically names E and V and specifically says issue will "take equally the share which his her or their parent would otherwise had taken". D was not named in the will and so had no share to otherwise take...



If you challenged the will, the logical counters to your argument are:

1. The clause you quote states "IF any child of mine..." Regarding D there was no "if" as he had already died which M obviously already knew so why would M say "if" if they meant that to include the already deceased D? The logical answer is that the "if any child of mine" only relates to E and V, and M could have specifically named D if that was the intention.
2. Even if you disagree and "if any child of mine" was to include D then the full clause says the grandchildren will "take equally the share which his her or their parent would otherwise had taken". D was not named in the will so there was no share to otherwise take.
3. The grandchildren weren't simply forgotten as they were left pecuniary gifts which suggests that was M's intention.

I completely understand why you wouldn't be happy how this has turned out but sadly I think you have little chance of convincing a court that your children are entitled to a share of M's estate.

point of

1. M could not specifically name D as a beneficiary in her will as he was already dead before her will was written . The IF ... conditional clause applies to all of M children's at the point of her death. D was already dead, and potentially E or V or all of M's children could have predeceased her (very unlikely because E and V did not die before the testator).

The "any child of mine" phrase DOES NOT ONLY apply to E & V - an alternative phrase "if any SAID/AFOREMENTIONED child on mine..." would specifically exclude D, which the will does not say

2. I re-iterate that a predeceased person cannot be a specific named beneficiary in a will if the death occurred before the will was written.

3. The specific pecuniary gifts to the grandchildren were small in relation to the overall size of the estate, and perhaps were there as a "tide you over" gift until the estate was finally dispersed in full. This is my own personal opinion as M's thought processes around this point are not documented in the will.

I agree with other comments that say it would have been much clearer and easier to understand if the will to had named the grandchildren explicitly along the lines "that the residue of the estate goes to E, V and J & J (through their late father's share)"

However, I think that the solicitor who drafted the will was perhaps using standard generic template clauses stipulated by STEP (Society of Trust and Estate Practitioners) which are designed to cover such a situation in a way that is a "catch all" for all permutations whereby all children of a testator are covered if they all predeceased the testator.


There is a handbook/guide for STEP members which not available to the general public (as far as I am aware). Any STEP members on this site?

[HariSeldon]

point of

1. The "any child of mine" phrase DOES NOT ONLY apply to E & V - an alternative phrase "if any SAID/AFOREMENTIONED child on mine..."

2. I re-iterate that a predeceased person cannot be a specific named beneficiary in a will if the death occurred before the will was written.

3. The specific pecuniary gifts to the grandchildren were small in relation to the overall size of the estate,

The "if any child of mine dies before me" could perhaps have been worded better by including "aformentioned" however the word used is "dies" which is present tense and so refers to a future event at the time of the will (reinforced by the use of "if" which is superfluous for something that's already happened.) I know it's not what you want to hear but I really can't see how you can interpret that clause to include someone who had already died.

Specifically mentioning D could have been as simple as "I leave to E, V and D's children" but as I said previously it's a moot point because the issue clause only caters for "the share which his her or their parent would otherwise had taken".

This is the fundamental point that I think you are ignoring; the will specifically leaves the residue to E & V, there is no D share for D's children to be entitled to. Are there other clauses that you haven't mentioned that override this crucial point?

Unfortunately for you the "in the event of the failure of the trusts" clause reinforces the idea that M was fully aware of D's children but for whatever reason decided to leave her estate to just E & V with J & J only inheriting the residue if both E & V predeceased M.

[Jewellery]

Another point which may illuminate the testator's intentions and instructions is both E and V did not have any children at time the will was written, and they were childless at the time of the testator's death.

E was in his 60s at the time the will was written and was unmarried. V was in her middle 50s but married.

Why would the testator instruct the solicitor to include the "PROVIDED THAT if any any child of mine dies before me...leaving issue who survive me...take equally the share which his her or their parent would otherwise have taken" conditional clause to only apply to childless E & V and deliberately exclude her deceased child D who did leave issue?

[HariSeldon]

Why would the testator instruct the solicitor to include the "PROVIDED THAT if any any child of mine dies before me...leaving issue who survive me...take equally the share which his her or their parent would otherwise have taken" conditional clause to only apply to childless E & V and deliberately exclude her deceased child D who did leave issue?

Unlikely as it is, obviously there are several scenarios in which E and/or V could have had children after the will was written and so it is a sensible clause to have included.

Ultimately the estate residue was specifically left to just E and V and frustratingly you will probably never know why M did that but that is what she did.

There is a slim chance that there was a Letter of Wishes with the will explaining why but even if you instructed solicitors to formally request all the relevant documents you still have two hurdles; 1) technically the Letter of Wishes itself is confidential and so does not have to be produced, and 2) your brother-in-law has to give permission. Only a court could force your b-i-l to share that information and that process could be very expensive with no guarantees as there may not even be a Letter.

Have you tried simply asking E and/or V if they know why M did not provide an equal share for her grandchildren?

[Jewellery]

Asking E or V what they knew about M's wishes regarding the grandchilden inheriting though their late brother is a good point.

However, neither of them have contacted their
Nephew and Niece since the testators death, even though the Nephew did contact his Uncle a few months afterwards offering to help (with no knowledge of the contents of the will at that time).

In my personal opinion I would have been asking "Well, what about my late brother's D share going to his children?"

There was no estrangement between the testator and her children, nor between D and his siblings before his death.

Why would the testator ignore 1/3 of her bloodline in favour of her childless children? E and V were in their 60s and middle 50s when the will was written, and the probability of them having issue was remote.

The testator had 2 grandchildren who were living when the will was written.

If either of the grandchildren ask their Uncle or Aunt about what they know about the testators wishes, what would compel them to give an answer? What evidence would be needed to corroborate what they may (or may not) say?

[PallasAthena]

If either of the grandchildren ask their Uncle or Aunt about what they know about the testators wishes, what would compel them to give an answer? What evidence would be needed to corroborate what they may (or may not) say?

They aren't obliged to answer any such questions, let alone produce evidence to prove what they say. In any case what makes you think they know why the testator wrote her will that way?

It's evident that your own interpretation of the will is not going to be validated on here but of course ultimately the only interpretation that matters would be a judge's if J & J took the matter to court. I suggest that they consult a solicitor specialising in contentious probate and get their opinion on the chances of success in a legal action.

[HariSeldon]

"Well, what about my late brother's D share going to his children?"

You really need to stop thinking like this; as has been said before, D did not have a share of M's estate and was never entitled to a share.

For the avoidance of doubt children are not automatically entitled to any share of their parent's estate when they die (except in Scotland.) It is entirely up to the parent who they leave their estate to and if M had left the entire estate to the Cat's Protection League instead of E & V then there is nothing your in-laws could have done about that either.

Why would the testator ignore 1/3 of her bloodline in favour of her childless children?

Unfortunately the testator did not ignore 1/3 of her bloodline as that may have made challenging the will a little easier, although the chance of success would still be extremely slim.

The testator left J & J a small pecuniary gift and J & J were the backstop beneficiaries should E & V predecease M; everything points to M being fully aware of J & J and for whatever reason deciding the bulk of her estate was to go to her two childless children with only a small amount going to her grandchildren. Clearly that seems unfair to you but ultimately it was M's money to do with as she wished.

If either of the grandchildren ask their about what they know about the testators wishes, what would compel them to give an answer? What evidence would be needed to corroborate what they may (or may not) say?

Obviously we don't know the dynamics in your extended family but I know that if this had happened in mine we would have just sorted it out between us; we'd have simply shared the "pot" between the three/four of us either officially through a Deed of Variation or informally by transferring money around.

As PallasAthena says, you can't compel the Aunt or Uncle to give an answer and they may not even know why M did what she did but it may be worth asking the question even if just for your own sanity.

Being completely dispassionate, in your situation I think you (and not J or J) should be the one to ask the questions politely and sensitively. If E & V are childless but on good terms with J & J then in the future there's a possibility they may leave a share of their estate to J & J so awkward questions now could jeopardise that.

[atticus]

HariSeldon makes very good points. You should pay close attention.