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Case law: Will-makers who do not want beneficiary’s children to inherit their parent’s share if the beneficiary dies first must expressly say so in their will

Will-makers who do not want a beneficiary’s children to inherit the beneficiary’s share if the beneficiary pre-deceases the will-maker should expressly say so in their will, or risk them inheriting their parent’s share.

January 2019

This update was published in Legal Alert - January 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A will-maker left the residue of her estate ‘Upon trust for such of my son Peter my said son Eric and my said son Christopher who shall be living at the date of my death and if more than one in equal shares absolutely’

When she died, one of her sons had pre-deceased her. A dispute arose over whether her late son’s children were entitled to his share. Under section 33 Wills Act, a beneficiary’s share under a will passes to the beneficiary’s children if they die before the will-maker - unless the will says otherwise. Here, the wording of the will appeared to imply that they were not.

However, the High Court ruled that the law required a will-maker to expressly exclude section 33 Wills Act from applying if they did not want a beneficiary’s share to pass to their children in these circumstances. It was not enough to imply this from the wording of the will.

Operative date

  • Now

Recommendation

  • Will-makers who do not wish a beneficiary’s children to inherit their share if the beneficiary pre-deceases the will-maker should ensure the will expressly says so, or risk the beneficiary’s children inheriting their deceased parent’s share

Case ref: Hives v Machin [2017] EWHC 1414

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