My auntie passed away and left a will she wrote in 1994.
She left her four siblings 20 per cent, 10 per cent, 10 per cent and 10 per cent each. Three of them – who were given 20 per cent, 10 per cent and 10 per cent – all passed away before her and they all have living wives and children. The other 50 per cent has been left to all four of their children.
What will happen now with the money left to the three deceased siblings?
Ms K B
Getting people to write a will in the first place is a big issue in Ireland where some estimates suggest that as few as one in three people have a current will. So, by that measure, your aunt was in the league of the responsible.
But she does appear to have fallen into a second group of the lapsed – those who make a will and then park the issue assuming that nothing more is required. As your story shows, wills often do need to evolve to take account of changing personal and family situations.
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A classic example is marriage and divorce or separation. When you marry, any will you may have drawn up in advance of that date is rendered void by the marriage unless it is specifically worded to show that it was drawn up with the marriage in mind. So, if you drew up a will as a single person and then got married, you would be regarded as having died intestate if you did not draw up another will after the wedding before you die.
On the other hand, a court-agreed separation or divorce ending a marriage does not void a will. Logically, you would think that if the marriage voids a will, so too would the dissolution of that marriage, but it doesn’t. So you could get divorced, thinking you had got your former partner out of your life for good, for your family to find that they benefit in the will subsequent to your death because you never updated it.
Normally a court-agreed separation will address this point specifically but not always. And if you have an informal separation, your separated spouse will retain their legal right share to a portion of your estate regardless of any will.
There are many other scenarios that make the updating of a will a sensible move – such as the birth of children or big changes in your assets, perhaps selling off a holiday home that had been earmarked for a family member of members in a will.
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The situation you outline is another classic case. Your aunt has made a will but it is almost 30 years old. Now that she has died, it transpires that three of those specifically named to inherit from her have predeceased her but they have left family behind.
This falls squarely into something called the “doctrine of lapse”. This is set down in section 91 of the Succession Act 1965, the legislation that governs inheritance in Ireland.
Doctrine of lapse determines that where someone dies before they inherit, anything they were due to inherit goes back into the estate of the person who had left it to them. There is no provision in law for the portion of the estate left to a now dead sibling to pass on to that sibling’s partner/spouse or their children – unless that specific intent in stated by your aunt in the will.
The one exception here is that if she had left something to her own child – as against a sibling – and that child had predeceased her but left children of their own. In that case, the grandchildren will inherit what was intended for the child. But there is still no provision for the child’s partner or spouse to inherit in their place.
So if what was intended for these three dead siblings cannot go to them because they have died, and cannot go to their spouses, partners or children, what happens it then?
Well, if your aunt had included in her will a “residuary clause”, the lapsed inheritance will fall into that. A residuary clause essentially sets out how anything left in a person’s estate after the specific bequests have been handled will be managed. It might say that anything remaining in the estate is divided equally among all remaining siblings, or all nephews and nieces, or even left to the local pet refuge, whatever.
It is important to include such a clause, especially in situations like your aunt’s where you are minded to leave a will in place without updating over several decades. It can do no harm because if, once the bequests are addressed, there is nothing left to distribute, the residuary clause simply fall moot. But its absence can have unintended consequences.
If there is no residuary clause, this 40 per cent of your aunt’s estate that was due to go to these three siblings will be treated under the laws of intestacy – ie her nearest living relation will benefit. Assuming she has no living partner or spouse, all of it goes to her own children, if any. If none, her parents are next in line if either or both is alive.
After that – the scenario that I understand we are in – the 40 per cent will be shared among your aunt’s brothers and sisters with the children of any deceased brothers and sisters taking their share equally among themselves. So, your aunt’s one remaining sibling takes a quarter of this 40 per cent (10 per cent of the estate) on top of the 10 per cent that received directly in the will. The children of each of the other three now-dead siblings will share the quarter of the 40 per cent of the estate that was due to pass to their parent under intestacy.
You say that 50 per cent of the estate was left to “all four of their children”. I am not certain here whether we are talking about your aunt’s children or whether it is the four children of her siblings ... and whether, 30 years down the line, there are still four children. It may be that that provision does specifically provide for the children of the siblings. In any case, it doesn’t affect how the portion of the estate due to the now-dead siblings is handled under intestacy – presuming there is no residuary clause.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
