Predeceased child before will written

[Jewellery]

Testator M had 3 adult children E, D and V.

D died before his mother M, leaving issue (2 children).

M then writes her will when she is in her 80s with the following paragraph included

"to hold the residue thereof... UPON TRUST for such of my son E and my daughter V as shall survive me and if more than one in equal shares absolutely PROVIDED THAT if any child of mine dies before me or before attaining a vested interest leaving issue who survive me then such issue shall on reaching the age of 18 years take equally the share which his her or their parent would otherwise had taken"

At the time the will was written, E was in his 60s and childless and V was in her late 50s and childless.

M's husband R, dies before her and his will leaves everything to M if he should die first.

The 2 grandchildren from D were both under 18 at the time M's will was written.

Who are the residual beneficiaries?

[atticus]

Please clarify - was the Will made after D's death?

[Jewellery]

Yes, child D died in 2009 and the testator M wrote her will in 2011.

[atticus]

The residuary beneficiaries would appear to be E and V.

Does the Will make any provision for the grandchildren?

[Jewellery]

The conditional clause states "if ANY child of mine dies before me..." This would include D, and therefore his children would satisfy the condition?

What logical counter argument could be made?

[PallasAthena]

When M wrote her will in 2011 did she know that D has died in 2009? (I realise the answer is almost certainly 'of course she knew' but just wanted to double check).

And you didn't answer atticus's question, is there any clause in the will which specifically leaves anything to the grandchildren (the children of D)?

[atticus]

The condional clause is contained in a Will made 2 years after child D had died.

Answer to my question awaited.

[sederunt]

The children of D inherit what D would have been entitled to. Unfortunately D is entitled to nothing.

[Jewellery]

The grandchildren did receive small pecuniary gifts along with other people and charities.

There was another paragraph in the will that states

"IN the event of the failure of the trusts hereinbefore declared in relation to my Residuary Estate by reason that no person takes a vested or indefeasible interest in the capital therein subject to the trusts aforesaid and to the exercise of any power hereby or by law conferred upon my Trustees my Residuary Estate and the income thereof shall be held UPON TRUST for such of my grandson J and and my granddaughter J as shall survive me and if more than one in equal shares absolutely"

The son D and the grandchildren had a loving and close relationship with the Testator M.

If the testator just wanted the residue of her estate to go to her children E and V (who had no issue, and still do not), why is the IF THEN ELSE conditional clause in the will at all?

Is there a legal explanation as to why the the condition "PROVIDED THAT (IF) ANY child of mine dies before me... leaving issue who survive me...take equally the share which his her their parent would otherwise have taken" does not apply?

[Jewellery]

The children of D inherit what D would have been entitled to. Unfortunately D is entitled to nothing.

I agree D was not entitled to anything because he was dead, and the Testator was fully aware of that fact. However, the conditional clause criteria are met

1) Child D did die before the testator
2) The criterion "ANY child of mine who dies before me" was met
3) The criterion of child D having issue who survive the Testator was met

What legal counter arguments could be made to show why the 2 grandchildren should not inherit their late father's share of the residual estate as per the criteria of the conditional clause?

[HariSeldon]

What legal counter arguments could be made to show why the 2 grandchildren should not inherit their late father's share of the residual estate as per the criteria of the conditional clause?

The two grandchildren will inherit their late father's share... the problem is that their late father's share is nothing based on what you've posted so far.

Specifically "the share which his her or their parent would otherwise had taken" - D would never have otherwise taken anything as sadly they weren't included in the will as a beneficiary.

Of course if E and V are in agreement (and it's within two years of M's death) then the will could be varied to share the residual estate three ways between E, V and D's children.

[atticus]

The grandchildren did receive small pecuniary gifts along with other people and charities.

There was another paragraph in the will that states

"IN the event of the failure of the trusts hereinbefore declared in relation to my Residuary Estate by reason that no person takes a vested or indefeasible interest in the capital therein subject to the trusts aforesaid and to the exercise of any power hereby or by law conferred upon my Trustees my Residuary Estate and the income thereof shall be held UPON TRUST for such of my grandson J and and my granddaughter J as shall survive me and if more than one in equal shares absolutely"

Why was this not mentioned at the outset?

Where does the OP fit into this situation?

[Jewellery]

I did not mention this paragraph in my original post as I was not aware of it's possible importance.

Can you explain if and why it is important?

What is an "OP"?

[Jewellery]

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?

[PallasAthena]

OP = Original Poster, ie you on this thread.

The question being asked is what your involvement is? Are you one of the grandchildren?

Is M still alive? That's not clear from your posts.

If M is not alive when did she die? Are you an executor of the Will?