Residuary Estate "in equal shares absolutely"

I have a Will leaving the residuary estate as follows:

“I give the rest residue and remainder of my property both real and personal including my property and its contents to my nephews and nieces A B C and D in equal shares absolutely”

Both C and D have predeceased the testatrix. Will the estate pass to the surviving nephews and nieces or should I treat this as a partial intestacy?

Thank you

In the absence of the direction that the division is to take place only amongst the survivors, the shares of C and D lapse (applying Page v. Page, 1728) and are subject to the intestacy rules.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I agree with Paul.

A,B,C and D are beneficiaries as tenants in common (not joint tenants) and thus on the deaths of C and D before the testator’s death their respective shares lapse and fall within the intestacy rules (ie their interests do not pass to A and B as would happen with joint tenants).

Malcolm Finney

I doubt if the testator would have wanted half of his estate to pass on intestacy. If only the Will draftsman had used the words “to such of my nephews and nieces A B C and D as shall survive me and if more than one in equal shares absolutely” this could have been avoided.

Patrick Moroney