Wills without residuary clauses can see people inherit even if you didn’t want them to

My brother died and left his estate – no property, just money – to five of his siblings. There were six siblings not included.
Two of the five siblings preceded my brother. Our solicitor informed me (I was the executor) that the inheritance they would receive if they had lived would now be distributed among all the siblings. I find this a strange law, as my brother specifically didn’t want them (those excluded) to have any inheritance from his estate.
Mr M.W.
We all like to think that we make the decisions on what happens when we die. And we do, but it does require careful thought and even more careful use of words in the will we draw up – assuming we do that at all, and most Irish people still don’t.
At least in this case, your brother had made a will and, given that there is no property or other complications involved, it appears on the surface to be a fairly straightforward exercise for you the executor.
Your brother wanted five of his 11 siblings to share the money he left behind and, you say, he quite specifically did not want the other six to receive anything. That’s fine, and I am sure you are correct in your interpretation, but is that what his will actually says?
The position is complicated by the fact that two of the intended beneficiaries have predeceased your brother. In a family of 12, this was a foreseeable scenario and you would expect that whatever solicitor was advising him would have spelt out what that would mean for his assets as he was drawing up the will.
You don’t require a solicitor of course in order to make a will but your experience of your brother’s estate explains why it is always a good idea. The next thing then is to hope that the solicitor takes the time to properly walk the client through the implications of the decisions as set out in a draft will. I have no doubt the vast majority do.
In this case, the nub of the issue appears to be what is called the “doctrine of lapse”. This is an arcane legal construct that, ironically for us in Ireland, was apparently first devised to advance the imperialistic ambitions of the British in India. Its impact is really quite simple to explain. In terms of a will, doctrine of lapse means that if a person who was due to inherit dies before they inherit, what they were due to inherit goes back into the pot.
As an example, let’s say your brother left an estate worth €20,000 split evenly between five of his brothers. All things being equal, each inheriting brother gets €4,000. But two have died before your brother and are therefore not around to inherit. Their €4,000s go back into the estate.
There are exceptions to this, isn’t there always? But they do not seem relevant here for reasons I will explain later.
If the will has a residuary clause – essentially a catch-all clause that says anything not otherwise specifically allocated should be divided in a certain way – then this is where the €8,000 originally due to the two brothers goes. In your brother’s case, a residuary clause might state that any residue in the estate (in this case the €8,000) be divided equally between the surviving brothers named as beneficiaries.
This would have seen the money go only to those brothers named in your brother’s will – and not to the other six. But if it were to say the residue should be divided equally among his brothers, without specifying which ones, then all nine surviving brothers would share equally in the €8,000 – regardless of your brother’s initial wishes.
Residuary clauses are very useful and, in my view, should feature in all wills. Where we bother to draw up a will at all, we review them only rarely and much can change over the balance of our lives – both in terms of our assets, our relationships and even who survives us. A well constructed residuary clause should ensure a person’s wishes are not frustrated by circumstance.
If there is no residuary clause – as I suspect might be the case here – your brother loses that control over the allocation of his assets. Anything falling back into the estate because the two intended beneficiaries had died is now treated as though he had died intestate – i.e. without a will. And the rules of who gets what in intestacy are set in stone in the Succession Act.
The legislation says that where he had a spouse and no children, the spouse would get everything. If there were children, the spouse would get two-thirds and the children share the remaining third equally among themselves. If there are neither spouse nor children – as in this case – the assets are divided equally among the next layer of relatives by degree of closeness to the deceased, starting with the deceased’s parents. Given they are no longer with us, next in line are siblings.
As your brother had siblings, they share the money that could not go to the dead siblings. So, the 11 siblings share the €8,000.
If the two dead siblings had children of their own, those children would share the money their father was due to receive in each case. Otherwise the money is split evenly among the nine surviving brothers. The six siblings excluded from the will do have a right to their share of the €8,000 in the absence of a functioning residuary clause – and there is nothing you or your dead brother can do about that.
His will governs who gets what as long as they are alive but otherwise the balance of assets that cannot be handed over because the intended recipient has died are treated under intestacy. It highlights the real importance of taking care (and advice) in drawing up a will to ensure what happens after you die is what you intend.
Now what about those exceptions I mentioned earlier on?
Well we have covered the first one, where a will provides for what happens in the event of a beneficiary dying before the benefactor either by dictating specifically where that inheritance should be redirected or having a more general residuary clause.
The next most significant is what is referred to as Section 98 children after the relevant clause of the Succession Act. This says that were a person’s child predeceases them but has children of their own, the doctrine of lapse will not apply. The inheritance does not necessarily go directly to those surviving grandchildren, but instead forms part of the dead child’s estate and is allocated according to their own will or intestacy if they had no will.
It applies only to the children or a dead child so will not apply in your brother’s case as he had no children in the first place.
If your solicitor says the money that was to go to your brother’s two dead brothers must now be divided equally among all brothers, including the six he did not wish to inherit, I assume he either had no residuary clause in his will or it was not written tightly enough to exclude those brothers.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to [email protected] with a contact phone number. This column is a reader service and is not intended to replace professional advice