Advice on will after death of a beneficiary

A question about : Advice on will after death of a beneficiary

We have a family member who has died a widow with no children.

She has divided her estate between 8 beneficiaries (1/8 each) who are all named.

My query relates to the wording for one of the beneficiaries, one of her brothers, who has decreased:

One part to Mr Bloggs absolutely

Mr Bloggs has a widow and two surviving children.

Does Mr Bloggs share get passed to his surviving children or does the inclusion of the word absolutely mean that it goes to him alone and as he has now deceased, his share goes back to the estate?

Best answers:

• Assuming this is England or Wales and there aren't instructions in the will about what happens if a beneficiary dies before the testator, I think that the legacy would fail and the estate would be divided between the surviving seven.
  If those seven all agree, the will could be varied so that his children were given his share.
  If you have any doubts or the executors' decision is likely to be challenged, pay for legal advice.
• If Mr Bloggs has received his part share, it then belongs to him. I can't see that the origional estate could ask for it back again once he died.
  If a Solicitor drew the will up he should have made it clear what 'absolutely' meant. I presume it may be if he'd died it wasn't to go to his widow.
• I have to say I think it is a bit mean.
  Ok I am not a solicitor but reading the post your family member meant to leave someone to Mr Blogs for his and his families benefit.
  I would suggest passing the 1/8 over to his widow. As with everything there is always a legal and a moral answer, sometimes they are not the same. But if it was me it would not feel right taking the extra knowing that in reality it was a dying wish that it go elsewhere.
• This is where it may get complicated, just to explain. The deceased passed away leaving a brother and his wife, plus two sister in laws (her two other brothers passed away). One of these brothers died before she had done the will and the other died a few years after the will was written (but the will was never amended) so the beneficiaries are as follows:
  1) Brother A
  2) Wife of Brother A
  3) Brother B (now Deceased)
  4) Wife of Brother B
  5) Wife of Brother C
  6) 2 Children of Brother A
  7) 2 Children of Brother B
  8) 2 Children of Brother C
  So all named beneficiaries are alive other than Brother B. Brother C has not been named in the will as he was deceased at the time of writing.
  All beneficiaries 1-5 have been named and the word "absolutely" used as follows:
  "1/8th share of my estate to Brother A absolutely"
  beneficiaries 6-8 have been named with "absolutely or the survivor of them"
  The question is, are the wife/children of Brother B entited to his share as they have survived him even through they are already named? In effect, as it stands, the family of Brother A gets 3/8, the family of Brother B gets 3/8 and the Family of Brother C gets 2/8 of the estate.
  If Brother B's share is put back into the estate, Brother A's family will get even more than the originally intended 3/8, Brother B's family will get less than 3/8 intended and Brother C's family will get more than the 2/8 intended. Not straightforward!
  The final clause states:
  "If any share or shares of my residuary estate shall be undisposed of by reason of lapse of any gift contained in the foregoing clause such shares shall sink into my residuary estate and be held for the other persons entitled to the remaining shares in the proportions which such shares bare to one another"
• Can you confirm that Brother B died between the writing of the will and the writer of the will dying?
  By symmetry, I would argue that family B should receive the same as family C.
• Yes, the will was written in 2005, brother B died 2007
• I think it all depends on the meaning of that final clause. I take it to mean that the estate should be split equally between however many of the 8 named "people" are available.
• OP in this context "absolutely" means without conditions.
  The will defines 8 shares of which "Brother B" the "2 Children of B" are two.
  Had the testator wanted the the share of Brother B to be divided among his children, the Will would have said something like "Brother B absolutely, but if he shall not survive me to his children in equal shares".
  As it stands the bequest to Brother B fails. So the estate has 7 shares and the two children of Brother B get 1/14 each.
  The last paragraph means that the 1/8 share left to Brother B gets re-distributed equally to the other 7 valid shares defined.
  This may not be what the other beneficiaries think is fair. As has been pointed out in law the executor(s) have no choice but to follow the terms of the will and if it is being dealt with by a solicitor they will require it is done according to the Will or a Deed of Variation is produced to vary it.
  Obviously if we are talking about small sums and everyone involved agrees to such a variation in an amicable way, and everyone trusts each other a less formal solution could be used. For example follow the will and agree that each person apart from the children of B will pay them the extra to make things equal.
• Thanks for all the responses, that's very helpful.