NSW Clarifying the Meaning of the Will?

[Willabby]

Hi

My grandmother recently passed away. Her husband had already passed away. She left 3 children living at her death. Two of those children have children of their own (being the grandchildren) and are over 18 years old. Grandma left a signed (& witnessed) will.

In this will, there is a paragraph stating that all of the estate is to be equally distributed between the 3 children of grandma. Immediately following said paragraph is the following:

"If any of my children fail to attain a vested interest leaving children (my grandchildren) living at my death, then equally for those children on reaching the age of 18 years as to the share which their parent would otherwise have taken;"

Could someone please clarify what this paragraph means? The wording is confusing. Frankly I don't think the 3 children should take 1/3 of the estate each. Does this paragraph entitle the grandchildren to a share in the estate?

 

[Arche]

Hi Willabby

Yes it is confusing - legalised but it sounds to me as though it means that if any of your grandmother's children died before her then any children that child had would take the parent's share.

Again from what you have said, it sounds as though the three children outlived their mother so they will share the inheritance.

To be quite honest, it doesn't matter who you think should inherit: what matters is what your grandmother wanted and what the will says.

 

[Rob Legat - SBPL]

Generally a will requires a beneficiary to outlive to person making it (testatrix, in the case of your grandmother) by a period of time before they can receive an inheritance - for example, 30 days. One of the reasons for this (as it was explained to me when I was an articled clerk) is: Imagine you have two people in a car accident.

Person One dies immediately and Person Two is seriously injured, and on life support. Two is a beneficiary of One's will. Two dies after a week. Without a clause like this, there would have to be a transfer of One's estates to Two's estate, and then a further transfer to Two's beneficiaries.

So, bearing that in mind, here's what the clause means:

- "fail to attain a vested interest" - a 'vested interest' in this respect means an actual transfer of the inheritance to the beneficiary. If they die before the testatrix, or before the end of the time period stated in the will after the testatrix dies, then they fail to attain that inheritance;

- "equally for those children ... as to the share their parent would otherwise have taken" - this means what you think it does, from what you've said. Three children means 1/3 of their parent's part of the inheritance each.

- "on reaching the age of 18 years" - the inheritance isn't given to them until they reach the age of 18 years. Until then, it is held in the estate and administered by the executors. Wills will usually have clauses about investment and ways in which the estate can be used for specific purposes for children (such as education expenses).