A Will leaves the residuary estate to the deceased’s brother’s . Both brothers have died. One of the brothers sons has also died leaving two children over the age of eighteen
One of the family members thinks the dead son’s children should not inherit.
" PROVIDED ALWAYS that if either of my brothers shall predecease me leaving issue living at my death who attain the age of twenty one years such issue shall take through all degrees according to their stocks and if more than one equally between them the share in my residuary estate which his her or their parent would have taken if such parent had attained a vested interest and so that no issue shall take whose parent is living and capable of taking."
I would appreciate members thoughts. My view is that they do inherit.
I would agree Collette.
Issue covers subsequent generations. As direct descendants of the predeceased brother the great nephews / nieces are included within the scope of the wording, contingent on attaining twenty one years.
As always interested to hear the views of others.
My view is that they are issue of the brother and each share is in trust until they are 21.
Looks like a pretty straightforward per stirpes clause, so sounds as if the children do inherit when they turn 21. If not, is Section 33 excluded?
This might be one for the books but my view is also that they do inherit; that the family member who thinks otherwise must be viewing the age of the brother’s grandchildren as disinheriting them; but I read this as saying that only the predeceased brother’s son (also presumed to have predeceased) need attain the age of 21, for his children to inherit as his issue.
I’d like to know whether anyone else agrees?
I agree that the nephew’s entitlement will devolve to his own children, subject to them individually attaining age 21. If any of those children fail to attain 21, the entitlement will pass to their own children (again subject to attaining age 21). However, any of the nephew’s children die before age 21 without issue, their entitlement will accrue to their sibling(s).
With regard to the question on s.33 Wills Act 1837, this only applies to issue of the testator and so is not applicable to the situation in question.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
The only issue that I see is whether the brothers predeceased the testator, which they presumably did, and if so whether their issue (sorry!) were living at the time of the testator’s death.
The brothers predeceased the issue but the issue in question died just before the testatrix made the will .
I agree that, although not felicitously worded, the provision is sufficiently clear and the great nephews will take when they reach 21 (if not already of that age).
Do we know why the dissenting family member questions this? Perhaps they are thinking that ‘issue’ is restricted to meaning only children.
The fact that the deceased’s brother was dead when the Will was executed may seem relevant to the dissenting family member, but in fact is of no significance as the Will anyway ‘speaks from date of death’.
Abrahamson & Associates