QLD Mothers Will

[Jill Knowles]

My mother passed away some 20 odd years ago. At the time of her passing we sought legal advice and did what was necessary in as much as Probate/Title deed being put into Executors as Personal Representitives. Rates and Land Valuation Notices are still in mums name. She left a Will in which she left her estate (a home residence) to be divided between :- the children of her late daughter - 1/6 between 3 children and the remaining 5/6 between the remaining 5 of her children as tenants in common in equal shares. "PROVIDED ALWAYS that should such child or children of mine predecease me to survive me but die before attaining a vested interest hereunder leaving issue who shall survive me or be born after my death who shall attain the age of 18 years, then such last mentioned child or children shall take if more than one in equal shares the share and interest which his, her or their parent would have taken had he, she or they survived me and obtained a vested interest hereunder. FURTHER PROVIDED ALWAYS that should any such child or children of mine predecease me and not have issue aforesaid, then such share and interest which such child or children so dieing would have received hereunder, shall be divided equally between the survivor or survivors of the above beneficiaries as tenants in common in equal shares." "I declare that my Trustees in carrying out their duties may exercise any of the following":- "To postpone the sale and /or conversion of all or any part of my estate for such time or times as they deem advisable."
As this home was the principal residence of one of the beneficiaries it was with the agreement of the other beneficiaries she could remain living in the home as long as she paid all the outgoings and maintenance until she no longer needed to live there. Thus the reason for the estate not having been sold.
Two other members of our family (Beneficiaries) have passed away over time. My sister who had two (2) children and my brother who had no children. Could you please advise me as to the manner in which the preceding clauses are to be enacted. Regards Jill

 

[Rob Legat - SBPL]

I'm not going to comment on the specific terms of the will because, plainly speaking, a solicitor would be utterly stupid to do that without a full consideration of the whole will. Taking any sort of legal clause out of context is fraught with danger.

That being said, on general principles here's what would happen assuming the situation plays out the way it look to play out:
- There's 8 children who get varying shares in the property (1/18 x 3, and 1/6 x 5).
- To take under the will they have to survive their mother by a period of 30 days (which is the statutory time period in Queensland).
- If they manage to do that, they have attained a 'vested interest' in the estate - provided there are no other conditions to satisfy.
- Once a vested interest is achieved for a particular bequest to a particular beneficiary, regardless of the actual holding of the property, the alternate provisions of the will cease to have effect for that particular bequest.
- What this means is that if a beneficiary passes away after having achieved a vested interest in an item of the estate, then that item is dealt with according to the terms of the beneficiary's will (or, if they don't have a valid will, the rules of intestacy). It does not get treated according to the terms of the initial will.