Partial Intestacy

[G7ivp]

A poorly drafted will and the death of a Residual Beneficiary have resulted in a Partial Intestacy. However, the Executor is not acknowledging this and is dividing the estate between the two surviving Residual Beneficiaries (the Executor is one of these).

What can be done to ensure the Executor follows English law?

[des8]

Re: Partial Intestacy

Hi and welcome

If the beneficiary died after the testator, the bequest is part of the estate of the beneficiary.

If the beneficiary died before the testator generally the bequest lapses into the residuary of the estate
However there is an exception where a parent leaves their child a gift in the will, but that child dies before the parent . If that child has child(ren) of their own then those offspring receive the share their parent would have received

When did the beneficiary die, prior or post the testator?
Why do you say there is a partial intestacy? Does the will not fully dispose of the deceased's assets?
This is a situation which could arise when a lapsed gift would fall into the residuary to be distributed under the provision governing that residuary. If there was no such provision then there could be a partial intestacy
[MENTION=85500]Peridot[/MENTION]

[G7ivp]

Re: Partial Intestacy

Thank you for your interest in my post.

The situation: 'A' dies leaving a Will. Two executors were appointed: 'B' and 'C'. 'B' has applied for and been granted Probate. The Will makes no other gifts and simply leaves the Residual Estate to three Beneficiaries: 'B', 'C' and 'D' in equal shares; three separate gifts rather than a gift to be shared. The will says nothing else. There is no direction as to what should happen if a gift or gifts fail. So after funeral expenses etc. what's left is intended to be divided between three but 'C' predeceased 'A'. The question is: what should happen to 'C's share?

I have searched extensively and found two schools of thought:

1. The share of the deceased beneficiary, 'C', is simply divided up between the two surviving beneficiaries 'B' and 'D'; although the will is silent on this and this is what the executor appears to be doing.

2. As the share of the deceased beneficiary fails (lapses) it creates a Partial Intestacy, and that share in the Residual Estate falls outside of Probate and is dealt with under the rules of Intestacy (as a part of the estate that was not properly disposed of).

'A''s spouse is dead and they had no children. 'A's parents are both dead. 'A' had five siblings - all dead. 'B' is the daughter of one sibling and 'D' the son of another - 'B' and 'D' are cousins. They benefit from the will in their own right and, if school 2 were applied then they would each benefit from another portion of the estate if 'C's share was distributed under Intestacy and there are 8 other cousins who would also benefit.

I have been pointed to: Megarry's "Law of Real Property" p.583: "...if the gift which lapses is itself a gift of all or part of the residue, there is a partial intestacy and the property passes to the persons entitled on intestacy"

The authorities cited for that are:

Ackroyd v Smithson ( 1780) I Bro.C.C. 503
Re Forrest [1931] 1 Ch. 162
Re Midgley [1955] Ch. 576.

I would welcome any other opinions.

[Amethyst]

Re: Partial Intestacy

With regards to [MENTION=39710]des8[/MENTION]'s post, and s33 Wills Act, does 'C' have children ? and is 'C' a decendant of 'A' ?

[des8]

Re: Partial Intestacy

I think the outcome will depend on the exact wording of the will, and how a court will interpret the wishes of the testator.

wait to see what [MENTION=85500]Peridot[/MENTION] might have to say.
As she is busy you might need to have a little patience!

- - - Updated - - -

With regards to @des8's post, and s33 Wills Act, does 'C' have children ? and is 'C' a decendant of 'A' ?

"a" had no children !

[G7ivp]

Re: Partial Intestacy

With regards to [MENTION=39710]des8[/MENTION]'s post, and s33 Wills Act, does 'C' have children ? and is 'C' a decendant of 'A' ?

Hi, 'C' was a brother of 'A' and had three children - all living.

[Peridot]

Re: Partial Intestacy

Hi G7ivp,
It really does depend on the exact wording of the Will. It may be indicated somewhere within the Will what should happen. I am confused you mention the residue is divided into 3 shares but no other indication what should happen 'if' Do you have a copy of the Will? Can you post it here redacted of all names and addresses. You can send a photo of the copy to [MENTION=49370]Kati[/MENTION] who can help with the redacting if needs be. Hopefully we can then get to the bottom of it and point you in the right direction.

[Kati]

Re: Partial Intestacy

of course

feel free to email me ~ kati@legalbeagles.info ~ if you need help adding pics or redacting etc...

[Amethyst]

Re: Partial Intestacy

"a" had no children !

Ok, I was just checking !

[Peridot]

Re: Partial Intestacy

Hi again,
IF this does prove to be a partial intestacy then the remaining 'share' of the residue would be divided equally between the remaining children of A's siblings in equal shares, (the cousins, including the two who already have a share of the residue), if there are no longer any living siblings.
It would be helpful to be able to check the Will first however.

[G7ivp]

Re: Partial Intestacy

There really isn't much to the will but I reproduce it here albeit with identities masked:

THIS IS THE LAST WILL AND TESTAMENT of me A of wwwwwwwwwwwwwwww and I hereby revoke all my former Wills and Testamentary Dispositions-----
I appoint my niece B of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (below called "B") and my brother C of yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy (below called "C") to be the Executors and Trustees (below called "my Trustees" which where the context so requires means my Trustees or Personal Representatives for the time being) of this my Will------
2.(a) I give to my Trustees all my estate not otherwise specifically disposed of upon
trust for sale with full power to postpone sale------
(b) My Trustees shall pay all my debts and funeral and testamentary expenses and all tax payable by reason of my death and all legacies given by this my Will------
(c) My Trustees shall hold the balance of my estate remaining after such payments (hereinafter called "my residuary estate") upon trust to be divided equally amongst my niece B my brother C and my nephew D of zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz-----
3. The Standard Provisions of the Society of Trust & Estate Practitioners (First Edition) shall apply with the deletion of paragraph 5. Section 11 of the Trusts of Land and Appointment of Trustees Act 1996 (consultation with beneficiaries) shall not apply---
4. No Trustee of mine shall be personally liable for breach of trust unless committed or suffered knowingly and in bad faith or shall be bound to take any proceedings for breach of trust against a co-trustee or previous trustee or his representative------

That's it. The will is signed and dated and witnessed by two non-beneficiaries; a Solicitor and a member of his staff.

[Peridot]

Re: Partial Intestacy

Hi G7ivp,
Thanks for typing the Will out. Provided it is an accurate transcript then yes you are right there is a partial intestacy with regard to 'C's share.
I have double checked the STEP provisions (edition 1) which does not assist I'm afraid and s33 Wills Act (where children pre-decease then legacy is divided equally between their children) only applies to a testator's children or remoter descendant ie grandchildren, not other relatives who pre-decease the testator.
The partial intestacy must be dealt with following the strict Intestacy Rules so if there are no children, parent or siblings surviving A then the amount should be divided equally between the siblings surviving children.
I hope that clarifies things. It shows the importance of having substitute residuary beneficiaries in wills, but not of much help in this situation I'm afraid.

[G7ivp]

Re: Partial Intestacy

Thank you Peridot
I believe that the division to the cousins should be "per stripes" from their parents share.
'A' had five siblings so 'C's share should initially be divided by five and the children of each sibling would receive a share in their parents' fifth rather than the whole of 'C's share being divided up among the cousins equally as one sibling had four children, another had three, two siblings each had two children and another sibling only had one child.
Now that we have established what should be done, how do we go about making sure that it is done?
I have not had any response from the Executor nor do I expect one.
Is it theft if they do not distribute 'C's share properly and keep more than they are entitled to?

[Peridot]

Re: Partial Intestacy

Sorry I may have missed it but did C have children?
B & D each receive 1/3rd of the residue of the estate as per the Will.
If C had children his children receive the remaining 1/3rd divided equally between them.
If C had no children and there are no surviving siblings of A then all the whole blood (not half blood - all very harry potter!) nephews and nieces of A will receive an equal share of the 1/3rd that C would have received.

I would suggest one of the entitled residuary beneficiaries under the partial intestacy contacts the executor in writing, pointing out the partial intestacy and on the basis of surviving family members how the 'intestate' 1/3 of the residue should be divided. I would point out that as the executor they would be personally liable if they do not distribute the estate correctly according to the Will and the intestacy rules in relation to the partial intestacy (the 1/3rd of the residue) and therefore could be sued for the appropriate share by any of the entitled beneficiaries.

Maybe a meeting or mediation should be suggested. If you are getting nothing back then it may be necessary to seek some advice from a contested probate specialist just to confirm what options are available, the likely cost of taking any action and the impact on the available funds for distribution that this may have. The residuary beneficiaries would then be in a far better position to decide what they wish to do going forward.

Any potential claim against the estate should be brought within 6 mths of the Grant being issued. There are exceptions of course but you will need to clarify the time line if you seek any advice on this.

[G7ivp]

Re: Partial Intestacy

Peridot, thanks again for your input but you seem at odds with www.gov.uk:
Intestacy - who inherits if someone dies without a will?

The estate is shared equally between the brothers or sisters.

If a brother or sister has already died, their children (nieces and nephews of the deceased) inherit in their place.



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Where did the deceased live?	England and Wales	Change answer to "Where did the deceased live?"
Is there a living husband, wife or civil partner?	No	Change answer to "Is there a living husband, wife or civil partner?"
Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)?	No	Change answer to "Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)?"
Are there any living parents?	No	Change answer to "Are there any living parents?"
Did the deceased have any brothers or sisters?	Yes	Change

There are 8 cousins. Thus, if 'C's share was £100 then the children of each sibling would receive £20 between them and not £12.50 (being 1/8 of 'C's share). Therefore, the cousin that was an only child would get £20 whereas the four cousins of another sibling would get £5 each.