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John Smith has three children, Jack, James and Jenny, and in his Will he leaves his estate
"to such of my children who shall be living in my death and if more than one in equal shares".
Jenny dies before him so on his death, his estate passes equally to Jack and James as his surviving children. Right? Well, not necessarily.
A legal provision which is often overlooked even by solicitors which says, in broad terms, that if you leave a gift in your Will to your child and that child dies before you, if the child leaves issue of their own (children, grandchildren, great grandchildren etc) they will automatically become entitled to their share of the estate. Unless a contrary intention appears by the Will. So, if Jenny left children of her own, would those children take her share of her estate?
It comes down to the question of what amounts to "a contrary intention" in a Will and there have been some interesting cases on the point.
It therefore appears that the present position would be that Jenny's children probably would inherit but the common theme of all three cases is that the law is uncertain enough for the families concerned to have ended up fighting in Court. The message is that a Will should be worded in a way that it is clear enough to avoid any possible ambiguity or disagreement.
When it comes to your Will, do not leave people to take issue.
For more advice about your Will or if you are involved in a dispute in relation to someone else's Will, contact Mark Jones.
This article was written by Mark Jones. Mark is a Partner in our Personal Law Department and is based in Harrogate.
Mark specialises in the creation and administration of trusts, tax planning and wills as well as probate work, particularly those where the family has fallen out and contentious issues have arisen.
You can contact Mark on 01423 502 211 or email directly.
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