Legal Tip 367: Wills and What could happen if a child dies before a parent?

When a person is to receive a gift from a will, they might die before that gift is received. A parent might die before their parent dies with their parent having planned to leave them a gift. What happens to this gift in that case?

There are 3 things that could happen if a child dies before a parent.


The parent's gift could end up going to:
a) the children of their child
b) their other children, in increased share
c) someone else

This purely comes down to the wording in the will.

But there may be grounds for a family provision claim or other ways to potentially 'attack' the will – such as estoppel.


Example

Grandpa Simpson is so old he no longer buys green bananas. He has done his will 20 years ago and does not have the capacity to change it now.

Suddenly Homer dies from eating Fugu sushi, prepared incorrectly.

Grandpa Simpson dies six months later.

What happens to the gift that he left to Homer?


The wording of the will determines what happens. Some wills are worded in such a way that the gift to X will go to the children of X in equal shares if X is dead at the time of the death of the will maker. In this case Homer’s gift would go to his 3 children since he is gone.

Other wills are worded so that the gift to X will go to the other children of the Testator if X is dead. In this case Homer’s gift would go to Homer’s brother, Herb. Grandpa might have left them each 50% but if one dies the other would get 100%.


Still other wills might be worded so that the gift to X goes to Y if X is dead. Grandpa Simpson’s will might have said that if Homer is not alive at the date of Grandpa’s death then the gift to Homer will instead go to the RSPCA instead.


The will could also be silent on this and worded in such a way that the gift goes into the ‘residue’ – the pot of leftover money which might go to some charity or other more distant relative.

What does you will say and is it what you want?

 

Many "specific gift"clauses can also affect "rest and residue"clauses.... eg a specific ring to Maggie. If Maggie was deceased the will may mean that specific ring is merely a estate asset rather than for Lisas. Care should be taken that BOTH specific gifts and the rest and residue clauses address certain assets and deaths. They can be issues that create tension and family disputes as they often have apersonal or emotional connection eg Bart may feel aggrieved he received no such gift, Lisa may be aggrieved Bart gets a ring he will have no specific use for etc.

This is one (of many) areas where specific drafting assists and off the shelf wills may be lacking