Hi there,
My great Aunt passed recently and she left her estate to her Nieces, Nephews and a Cousin via her will.
My father was one of her nephews, he and 3 of his brothers were deceased prior to my great Aunt writing her will, however she was fully aware that several of her nephews had passed and that they had children. It appears she considered her deceased nephews estate benefits when drafting the will by including clause 10.2 as follows:
Clause 10.2: "If any of those named as beneficiaries fails to survive me by 28 days leaving children who Survive me by 28 days who attain the age of 25 years then those children shall take the share of the residue of my estate that their parent would have taken had they survived, and if more than one in equal shares as tenants in common"
Unfortunately the estates executor who is a beneficiary of the estate and stands to benefit to the tune of hundreds of thousands of dollars by excluding the children of the deceased nephews has taken a different view:
"It is the executor’s view, based on advice she has received, that the correct legal interpretation of the clause 10.2 is to exclude the children of the nephews who were already deceased at the time the Will was made. The executor therefore intends to distribute the estate excluding the siblings of the pre deceased nephews"
I want to get some legal advice on whether we are being shafted by the executors interpretation or not?. It seems to me that the wording of clause 10.2 would be a fairly common wording within Wills, so surely the interpretation of it must be quite standard?. Is clause 10.2 designed to include or exclude the children of deceased beneficiaries? If it was designed to exclude deceased beneficiaries and their children, then it seems utterly pointless to even mention it, because standard implementation of the law is such that beneficiaries who die before the testator are automatically excluded.
I believe the only logical reason for my great Aunt to included clause 10.2 would be to preserve the benefits for deceased Nephews and Nieces children in cases where the beneficiary is not alive to receive their part of her estate. My impression is that the executor is playing an interpretation game in order to get their hands on a significant additional percentage of the estate. Thoughts??? Any advise on the normal interpretation is greatly appreciated.
My great Aunt passed recently and she left her estate to her Nieces, Nephews and a Cousin via her will.
My father was one of her nephews, he and 3 of his brothers were deceased prior to my great Aunt writing her will, however she was fully aware that several of her nephews had passed and that they had children. It appears she considered her deceased nephews estate benefits when drafting the will by including clause 10.2 as follows:
Clause 10.2: "If any of those named as beneficiaries fails to survive me by 28 days leaving children who Survive me by 28 days who attain the age of 25 years then those children shall take the share of the residue of my estate that their parent would have taken had they survived, and if more than one in equal shares as tenants in common"
Unfortunately the estates executor who is a beneficiary of the estate and stands to benefit to the tune of hundreds of thousands of dollars by excluding the children of the deceased nephews has taken a different view:
"It is the executor’s view, based on advice she has received, that the correct legal interpretation of the clause 10.2 is to exclude the children of the nephews who were already deceased at the time the Will was made. The executor therefore intends to distribute the estate excluding the siblings of the pre deceased nephews"
I want to get some legal advice on whether we are being shafted by the executors interpretation or not?. It seems to me that the wording of clause 10.2 would be a fairly common wording within Wills, so surely the interpretation of it must be quite standard?. Is clause 10.2 designed to include or exclude the children of deceased beneficiaries? If it was designed to exclude deceased beneficiaries and their children, then it seems utterly pointless to even mention it, because standard implementation of the law is such that beneficiaries who die before the testator are automatically excluded.
I believe the only logical reason for my great Aunt to included clause 10.2 would be to preserve the benefits for deceased Nephews and Nieces children in cases where the beneficiary is not alive to receive their part of her estate. My impression is that the executor is playing an interpretation game in order to get their hands on a significant additional percentage of the estate. Thoughts??? Any advise on the normal interpretation is greatly appreciated.