This is a very simple set of circumstances, but it’s still one that I find debating with colleagues about quite a lot on the best way to go about achieving the goal. I wondered what everyone’s thoughts/wording/drafting preference is in the following, fairly common, circumstances when drafting a will:-
T wishes to leave her Estate to her two sons, A and B, in equal shares.
A has two children of his own. B has no children of his own.
T wants to exclude s33 so that if A predeceases her, whole Estate goes to B, and if B predeceases her, whole Estate goes to B.
To achieve these wishes, I would typically go with something like “I leave my Estate to such of them my sons A and B as shall be living at my death and if more than one in equal shares absolutely”. I would then expressly remove s33. Is this how my fellow colleagues in this forum would generally approach this instruction?
Secondary thoughts:-
With such an instruction, I imagine you could probably get away with not expressly removing s33 but it’s much safer to include it.
If both A and B predeceased T, my understanding is that the intestacy rules would dictate that T’s grandchildren (A’s two children) would take the entire Estate. And so if T did not want this then would you keep things simple and just deal with this with a substitution gift as part of the clause? Or perhaps some other way?
You would be taking a risk that B’s share would devolve either by his will (over which T has no control) or on intestacy to his spouse, if any, at least in part but, subject to that, to A’s children only if they were then first in the pecking order. If T wants to achieve that outcome with certainty you need, as you indicate, a cross-accruer or substitutionary clause if B predeceases T without (legitimate only?) issue.
Does T wish to cut out any existing or future spouse (or cohabitant of T) from such a clause? Rather than rely on a codicil or new will if B is now unmarried the clause could give the will trustees discretion, by a mini DT, over the destination of B’s share among a class of B’s issue if he has any at T’s death but also including A and his issue and even others such as a future spouse etc of B, plus a letter of wishes which can be updated without execution formality. If that discretion is exercised promptly after T’s death (probate delay!) the IHT cost of a full distribution will be very small even if an NRB amount does not cover it. It may even suit A for his children to inherit directly rather than by passing through his own estate.
These situations are dangerous. The ‘Disinherited’ have no hesitation whatsoever in claiming and there is a plethora of lawyers out there on no win no fee deals to encourage them. Those who lose out are rarely cheerful about it and are unlikely to leave any stone unturned in their desire to get their hands T’s money.
If A predeceases her descendants will challenge the Will. Addressing that challenge will involve an astronomical amount of time and effort for you (e.g. review and disclosure of the file) and may, in any event, cost your firm a lot of money.
As a starting point you would want express written instructions in detail from T as to why she wishes to disinherit A’s descendants setting out the situations she has in mind and the reasons.
For example: T dies on Monday, A and B inherit in equal shares. A celebrates his good fortune in the pub, falls over and dies on Tuesday. A’s descendants inherit A’s share of T’s estate.
Alternative: A dies on Monday. T drowns her sorrows in the pub, falls over and dies on Tuesday. A’s descendants get nothing and claim against you as this could not possibly be what T intended. You must report the matter to your professional indemnity insurers as a ‘circumstance’. They accept your assurance that the claim has no merit but they are a little nervous now so they estimate the total potential cost, divide it by six and add that amount to your premium every year until the claim is resolved. In addition, you have now increased your risk profile so your premium is increased in any event.
It would be best to avoid the intestacy rules by specifying what is to happen if both A and B predecease.
We owe a duty to our clients to wargame the real world scenarios. We owe a duty to ourselves, if the client instructs us to disregard them, to put our concerns in writing to the client and ask them to acknowledge in writing.
Jack, Vincent - many thanks for you detailed input. I’m always looking to learn from more experienced (and talented) lawyers than I, so this forum is great for that; particularly when such responses are so carefully considered. Thank you.