Inheritance can get complicated when intended beneficiaries die

Q&A: Dominic Coyle

Your brother-in-law was alive at the time his sister died. That is the key date, not the date on which he actually receives any benefit under the will. Once he was alive at that date, he inherits

Your brother-in-law was alive at the time his sister died. That is the key date, not the date on which he actually receives any benefit under the will. Once he was alive at that date, he inherits

 

My brother-in-law died on July 12th. He was living in England, and was being cared for by his step-daughter.

He was left money in his sister’s will. She died over a year ago but the money was not lodged in his bank account before his death. In his will he left everything to his step-daughter

I was doing a search on the internet to try and get some information on where that money goes now and came an article you wrote on a similar situation. Can you advise what should happen.

Mr D.R., email

Dealing with a person’s affairs after they die can be stressful and complex enough without issues arising to further complicate matters. However, in this case the answer is quite clear.

Your brother-in-law was alive at the time his sister died. That is the key date, not the date on which he actually receives any benefit under the will. Once he was alive at that date, he inherits. If he had predeceased your sister then the position would be very different.

The article to which you refer related to a child who had predeceased his mother but who had children of his own. There is a specific section in the Succession Act, which governs inheritance, that provides for this.

Section 98 states that even where a child (or other issue - i.e. a grandchild) predeceases a parent (or grandparent), as long as any of their own children are still living when the person providing the inheritance dies, “the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will”.

Two important things to note here. First, the inheritance “shall take effect”. As the section is artificially construing the dead child to have survived the parent, this means that the inheritance goes to them. In practical terms, given they’re dead, this means it goes to their estate.

That doesn’t automatically mean it goes to their surviving children: that depends on the wording of their own will, if any. It might all go to a partner or elsewhere.

But if the children of the dead child were themselves dead then the inheritance would have died with the child.

The other thing to note is the phrase “unless a contrary intention appears from the will”. A will can provide for the death of a child by expressly stating that the estate be divided among the person’s “surviving” children – although, as UK case law certainly shows, it makes sense to cite the clause in law granting the exception and specifically exclude that. (This, by the way, is another reason to seek legal advice in writing a will).

Equally, a will can state expressly that, in the event of the person being predeceased by a child, their share of any inheritance shall be shared by their children. This gets around the loss of control where the grandchildren (or great-grandchildren) are still living but the money actually goes to a partner or elsewhere.

But the final thing to note is that the scenario covered by section 98 does not affect your case. It applies only where a person is predeceased by their child or other direct descendant. In your position you are talking about inheritance between siblings, not from a parent to a child.

So if your brother-in-law had predeceased his sister his inheritance would have died with him.

The same, as I understand, is true in the UK. Again there is specific provision made to provide for the prior death of a child who has children of their own. I gather, in England and Wales, the relevant statute is section 19 of the Administration of Justice Act 1982 and, in Northern Ireland, article 22 of the Wills and Administration Proceedings (NI) Order 1994.

Also, in the UK your brother-in-law would generally have needed to survive his sister by at least 28 days or else he would be deemed to have died at the same time as her. But that is not the case in Ireland. As long as he was alive at the date of her death, he inherits whatever was coming to him from her will.

However, all of this is pure academic in your case. Your brother-in-law clearly survived after his sister and is entitled to inherit. What happens thereafter is entirely up to his own will. In this case you say he had willed all his estate to his step-daughter. That will include anything he was to receive from his sister.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into

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