Gifts of Residue

[Syntaxian]

My late Uncle left a Last Will and Testament that has now proceeded through Probate.

He left quite a significant Estate in which he has applied Gifts of Residue to his brother and sister, my uncle and aunt, with the wording ‘as shall survive me and if more than one in equal shares absolutely but if this gift fails then the following provisions shall apply instead.’

He then goes on to declare that his Estate shall be distributed equally to his nieces and nephews.

My questions are, his brother died before him, so does this constitute a failure of the gift and, if so, does the clause relating to his nieces and nephews apply, or does his sister automatically receive the deceased brother’s proportion of the Estate?

Thank you in advance of any advice!

 

[FlyingRon]

I hope it's not punctuated like that. However, if sounds like that if any of brother, sister, uncle, or aunt are alive at the time of his death, it gets split among those of them who are alive. It only "fails" if none of those survive him.

 

[Syntaxian]

Thanks for your response. It is punctuated exactly as presented to the Forum and it looks like the surviving Aunt becomes the sole beneficiary - the least favourable outcome!

 

[Syntaxian]

Of significance is the fact that I am UK based, so unsure as to the impact of this.

 

[not2cleverRed]

Of significance is the fact that I am UK based, so unsure as to the impact of this.

What matters is where the "late Uncle" was when he died, as this will dictate what laws apply.

 

[FlyingRon]

It's not punctuated like that. I see the "My uncle and aunt" was not in the will, but rather explaining your relationship to the brother and sister.
So the answer would appear that if the sister is alive and the brother is not, she gets it all.
Of course, we don't do UK stuff here.

 

[Syntaxian]

Sorry for any confusion! It is my uncle and aunt who are the two beneficiaries of the Will.

Uncle passed away before the Testator and was living with him (in the UK). Am I correct in assuming that everything passes to my aunt?

 

[adjusterjack]

it looks like the surviving Aunt becomes the sole beneficiary - the least favourable outcome!

Not to the aunt, I'm sure.

Am I correct in assuming that everything passes to my aunt?

What does the probate lawyer say?

 

[Syntaxian]

This issue not so much with my aunt, but her children (my cousins)!

Grant of Probate been approved, so can only assume that the Executors are legally bound to administer the Estate as per the Testator’s wishes?

 

[adjusterjack]

Grant of Probate been approved, so can only assume that the Executors are legally bound to administer the Estate as per the Testator’s wishes?

True.

 

[Syntaxian]

Hence me trying to attempt how a Gift of Residue is deemed to have ‘failed’ or the impact of the death of a joint beneficiary! I would have thought that such a relatively simple questioned could be answer quickly (and accurately) yet nowhere can I locate an answer anywhere on the Internet!

 

[FlyingRon]

No, it's not a joint beneficiary, just multiple ones.

The effect of this is simple:

BOTH brother and sister survive: each gets half.
EITHER brother or sister survive: the survivor gets all
NEITHER brother or sister survive: The stuff goes to the nieces and nephews.


The intent of this is clear. As long as brother or sister live, the nieces or nephews don't get any of it. Neither does any heirs of the brother or sister who predeceases the testator.

 

[Syntaxian]

Many thanks!

You have cleared this up for me. I fully appreciate this!

 

[TrustUser]

gosh, that will was written terribly. i would have made it a lot clearer as to what i wanted to do

this was a substantial amount of property

 

[TrustUser]

what bothers me is that it leaves an uncertainty in my mind that the will did exactly what the testator wanted it to do ?

if we interpret the will as was done, then it is clear that the testator favored neither set of kids (from brother or sister)

yet 1 set of kids ends up getting completely left out, where the other set ends up getting everything

i dont think this is typical of the average person's thinking, who would have a brother and sister left (apparently without spouse or kids of his own)