Lawyer seems confused over who benefits from a will – The Irish Times


Could you please help me. This is my uncle’s will. The lawyer handling it first told me that my mother should inherit the residue because she is the only surviving sister.

The man who died had no children. He named five siblings in his residual clause. Of these, four died.

Another sister who received the house and money in the will also died, but after the brother who owns this will, the house and money will go to his estate.

The lawyer now says that the residual will have to be shared. I thought under the Succession Act, Section 91, as she is the only surviving relative, she would inherit.

Mrs. F.O’S, email

The first thing is to clarify that I’m not a lawyer, and I think you might need that before this is all over. The second thing to say is that on first reading, I think you are right and the lawyer handling this will is wrong. The third issue I have is some confusion over who this attorney thinks your mother should share any residual benefits with.

The key issues here, as I understand it, are the operation of residual clauses and what is called the doctrine of forfeiture. Section 91, as you say, seems central to the issue.

And, if nothing else, these terms alone should persuade people of the need for proper legal advice when drafting wills to ensure that what they say in the will is precisely what they intend in relation to to their assets upon their death.

In fairness, your uncle’s handwritten will, a copy of which you helpfully included in your letter, was witnessed by a lawyer, which would lead you to believe that he had the benefit of legal advice. If it were me I would say that for clarity there is an ‘other’ missing from the residuary clause but in fairness I don’t think that would change the interpretation of the will in favor of your mother.

The key to any will is whether or not the beneficiaries survive the person who writes the will.

So let’s see where we are. Your uncle, who had no children (or spouse/partner, I assume) died leaving a will for the benefit of his siblings and some small charitable bequests.

Outside of charity, there is only one beneficiary of a bequest and that is one of his sisters. She received both her house and a sum of money.

Although she has since died, the important thing is that she was alive at the time of your uncle’s death. Therefore, she inherits – even if she were to die before the estate is fully distributed after probate, as seems likely in this case. As you say, your uncle’s house and the money it received are now part of his estate.

This brings us to the residual clause. Residual clauses are very important. They cover what you want to do with anything not already specifically allocated in a bequest and, importantly, they also cover what happens if the person you are leaving a bequest to dies before you do. Without a residuary clause, this last scenario would see the object of the bequest treated according to the rules of the intestate even if there is a valid will.

Legal advisers will always advise that a remainder clause is included in the will and, in your uncle’s case, it is. The residuary clause in this case says: “Subject to the payment of my legitimate debts, funeral expenses and testamentary expenses, give, bequeath, bequeath and name the residue of my estate to my brothers and sisters, namely A, B, C , D and E [my initials to preserve the privacy of all parties] into five equal parts for their own use absolutely.

Of these, you say, four are dead.

This brings us to the doctrine of forfeiture, which is defined in Section 91 of the Succession Act.

It states: “Unless there is a contrary intention appearing in the will, any estate included or intended to be included in a will or a bequest contained in the will which fails or is void because the legatee or the legatee did not survive the testator, or because the will or bequest is contrary to law or otherwise incapable of taking effect, must be included in any residual will or bequest, as the case may be, contained in the will. »

So unless your uncle has said, for example, that the residue goes to A, B, C, D and E, or, in case of previous death, to their children, if any (this which he does not say in this case), the presumption is that the share of the four intended beneficiaries who died before him falls back into the residue for the benefit of all remaining living beneficiaries – in this case, your mother.

There are very limited exceptions to this, none of which I see apply here.

So what’s the confusion for the lawyer here? Are they suggesting that the residual benefit of those who are deceased should be treated intestate even if there remains a valid beneficiary of the residue? It can’t be true.

Are they arguing that the absence of the word “other” before siblings in the residuary clause means that the estate of the other sister who survived your uncle should also benefit even though she has since died? I can see the argument but, since your uncle specifically named the beneficiaries of the remainder and specified that there were five, I don’t see this surviving legal challenge.

Or does the lawyer one of the exceptions to Section 91 apply? The exceptions apply to the child of a person making the will, when a bequest is made to a person of trust for another person, when the bequest is to fulfill a legal or moral obligation or when, as noted above, the will explicitly states what happens when a beneficiary dies before the person who wrote the will.

None apply here, unless he has a legal or moral obligation to an anonymous person – and there is no suggestion of this in your letter. He had no children and no provision for either of the other two possible exceptions appears in the will.

Based on the information provided, I believe your mother should and will inherit the balance of this uncle’s estate, but she should get her own legal representation and let the two attorneys settle any uncertainties. This is not a domain for laymen.


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