Legal Tip 239: Children Dying Before Parents and wills

When making a will you should consider what could happen to your estate if your children die before you. Most people don’t want to consider this sort of thing, but you should consider it because the outcomes can be very different when you have grandchildren.


Example

Homer and Marge have 3 children, Bart, Lisa and Maggie.


If Homer dies he leaves everything to Marge, if Marge is gone everything to the children equally. Same with Marge.

But what if Bart had 3 kids at this point. Should Bart’s 1/3 of the estate go to his children or should it go to Lisa and Maggie instead?

If going to this kids, the assets would pass like this

a) 1/3 to Lisa

b) 1/3 to Maggie

c) 1/3 to Bart’s kids who would each get 1/3 of 1/3 or 1/9th of the assets of the testator


If going to the siblings it would look like this

a) 1/3 to Lisa

b) 1/3 to Maggie, and

c) 1/3 to Lisa and Maggie

Which basically means

a) ½ to Lisa

b) ½ to Bart


Lets assume Marge dies with $900,000 in assets and Homer had died year’s ago, in a car accident with Bart who also died.

Under scenario 1 Lisa and Maggie would get $450,000 each

Under scenario 2, if Bart had no kids Lisa and Maggie would get $450,000 each still, but if Bart had 3 kids then:

a) Lisa $300,000

b) Maggie $300,000

c) Bart’s kids $100,000 each

 

Would Bart’s children have any right (for lack of a better word) of their grand parents estate even if they were not mentioned in the will? (Scenario 1, to the siblings)

 

Not under NSW law, unless perhaps they were dependants