The Contested Wills, Trusts and Estates team, here at Hugh James 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 –
- a will contains a devise or bequest to a child or remoter descendant of the testator; and
- the intended beneficiary dies before the testator, leaving issue; and
- 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.