A tale of an unreviewed will and a missing clause

Warning – if you are hoping this is a juicy tale of battling beneficiaries or a feuding family, you may be disappointed! However if you are looking for a poorly drafted will leading to some extensive family tree investigation, then read on! This is a cautionary tale of the perils of not keeping your Will reviewed and updated.  How things can go wrong even if there is no dispute. The facts are those of a real estate I am currently dealing with, but anonymised.

Walter made his Will in 1994. He divided his estate into percentages between 15 individuals and usually this is a sensible option as the beneficiaries will all receive amounts proportionate to each other, regardless of changes in value to the estate over time.

However his Will had no ‘accruer’ clause in the Will – or what you might call a ‘wrap-around’ clause. This means that if any of those 15 beneficiaries died before Walter, the Will is silent as to what then happens to that part of the estate. Because the Will makes no provision and we are dealing with a share in residue (the remaining bulk of the estate after debts and costs) rather than a gift of a specific amount, if any beneficiary died before Walter, their share would go to people following the Intestacy Rules. The Intestacy Rules are a set of statutory guidelines which tell you how to distribute an estate if there is no Will. These Rules only benefit a person’s spouse and closest blood relatives.

Walter died in 2018 – 5 of the beneficiaries died before him (including both Executors!), and because of the way the shares were structured, this means that over 50% of the estate does not have a home under the Will and has to be dealt with under the Intestacy Rules. So…we ask a series of questions to work out who will benefit…

Was Walter married? No, never married

Did he have children? No

Parents still alive? No

Any brothers and sisters? No

Grandparents still alive? No

Any aunts and uncles? Yes!

So this means that the line of Walter’s family which benefits from the intestate part of his estate is his living aunts and uncles, and those who died before him  but have living children/grandchildren.

We were provided with a huge amount of useful information from the family about the family tree, but engaged services of a genealogist company to help confirm and complete the research. Going back to the children of Walter’s grandparents was a significant task.  We discovered aunts and uncles that no one had ever heard of (most sadly died as infants), some half-uncles and a couple of aunts who, although their births were found, there seemed to be no later records. Surname ‘Smith,’ Christian names fairly common and born around 1880 – it was a tricky task!

After 2 years we are nearly ready to finalise the estate, but ultimately a lot of time and money has been spent investigating the family tree. We are ending with 20 beneficiaries sharing the part of the estate which would have been shared by 5. We have had to put insurance in place to cover the possible beneficial lines where we cannot confirm marriages, children or deaths. And the beneficiaries don’t receive equal shares – there is a complex calculation to be done, depending on how the lines have descended – for example one beneficiary will receive one-sixth of one-sixth of one quarter the 50% dealt with in this way! 

This has been very interesting from a legal perspective, but for the family messy, complicated and time consuming – a salutary lesson in keeping your Will under regular review and up to date!

If you’re having issues with wills and probate, contact Kathryn Caple on 01283 526230 or email kathryn.caple@elselaw.co.uk

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