8 October 2020 | Comment | Article by Eleanor Goodridge

Will I inherit my grandparent’s estate if my parents die before me?

Eleanor Goodridge, Solicitor in the contested wills team, considers what happens to an inheritance to a child who has predeceased.

 

A question that I frequently get asked when dealing with will disputes is “what will happen to my mum/dad’s inheritance if they died before my grandparent?”.

The short answer is that this depends on whether the grandparent had a will and, if so, the specific wording of the will.

 

If they die with no will

A person who dies without a will is said to die “intestate”. In that case, their estate passes according to what are known as the intestacy rules.

Where a last surviving grandparent dies without a will leaving children and grandchildren, in the case of any children who predeceased that grandparent, their share of the estate passes to their own children in equal shares.

 

If they die but have made a Will

If the grandparent died leaving a will with a gift to a parent who has predeceased, whether or not a grandchild inherits depends on if Section 33 Wills Act 1837 applies.

 

Section 33 Wills Act 1837 provides that:

(1) Where –

  1. a will contains a devise or bequest to a child or remoter descendant of the testator; and
  2. the intended beneficiary dies before the testator, leaving issue; and
  3. issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.

“Issue” in this context means a person’s living descendants.

As such, the default position is that, unless the will expresses a contrary intention then the gift by a parent to a child who has predeceased does not lapse but, instead, passes to their children or remoter descendants.

 

Contrary intentions

Here are some examples.

Alma’s will reads as follows:

I leave my estate to my daughter Catherine absolutely.

As there is no contrary intention, if Catherine predeceases Alma, Catherine’s children or remoter descendants would inherit Alma’s estate.

 

What about:

I leave my estate to my daughter Catherine absolutely but in the event that she predeceases me then I leave my estate to my brother John.

Alma’s will expresses a contrary intention so, if Catherine predeceases Alma, Catherine’s children or remoter descendants wouldn’t inherit Alma’s estate. Instead, it would pass to John.

 

Similarly, if the will just said the following, this would show a contrary intention:

I leave my estate to my daughter Catherine absolutely.

Section 33 Wills Act 1837 shall not apply.

However, the wording of the will may not always be as clear as the examples above.

In cases where the words in a will are either unclear or ambiguous, a person can apply to the court under section 21 Administration of Justice Act 1982 to construe their true and proper meaning, with regard to any relevant extrinsic evidence of the person’s real intentions.

 

How about:

I give my estate to my children Arthur, Brian and Catherine as shall survive me in equal shares absolutely.

The words "as shall survive me" could appear, objectively, to suggest a contrary intention but that is not actually the case. The current legal authority says otherwise.

The recent case of Hives v Machin [2017] EWHC 1414 (Ch), albeit a first instance decision, is quite clear that those words do not act as a contrary intention to exclude section 33.

The judgment, in that case, goes on to state that, in any event, those words are likely neither unclear nor ambiguous which means that you could not then fall back on section 21 Administration of Justice Act 1982 and admit extrinsic evidence as to a person’s intentions.

Further nuanced examples historically have included:

  • where the gift is to a class or group of beneficiaries where some members have predeceased;
  • where there are adopted children; and/or
  • where there are illegitimate children.

 

Executors beware

The law has thankfully evolved to provide for many such situations. However, the position is not always so clear cut; what, on first glance, might appear to be obvious may, on closer inspection, be anything but. As such, even those with the best of intentions may find themselves unwittingly falling foul of these rules and being faced with claims for maladministration.

If in doubt, it is best to always seek advice.

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Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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