Solicitor’s confusion about who benefits from a will is down to one word

Could please help me. This is my uncle’s will. The solicitor who is dealing with it initially told me that my mother was to inherit the residual as she is the only surviving sibling.

The man who died had no children. He named five siblings in his residual clause. Of these, four have died.

Another sister who was given the house and some money in the will has also died, but after the brother whose will this is, so the house and money will go into her estate.

The solicitor now says the residual will have to be shared. I thought under Succession Act, section 91, as she is the only next of kin surviving, she would inherit.

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Ms D.S., email

* The first thing is to make it clear that I am not a solicitor, and I think it might be no harm for your mother to consult one. The second thing to say is that, on first reading, I thought you were right and the solicitor handling this will was wrong. However, it is certainly not clearcut, and advice I have since received explains why the solicitor has got it right here.

The key issues, as I understand it, are the precise wording of the will and the workings of residuary clauses. It encompasses all sorts of things including something called doctrine of lapse, intestacy and another legal concept, “per stirpes”.

And, if nothing else, those terms alone should persuade people of the need for proper legal advice when they are drawing up wills to make sure that what they say in the will precisely match what their intentions are in relation to their assets when they die.

In fairness, your uncle’s handwritten will, a copy of which you helpfully included in your letter, has been witnessed by a lawyer which would lead you to think he had the benefit of legal advice. If it were me, I would suggest that for ultimate clarity there is an “other” missing in the residuary clause but, in fairness, that is not the word that will fundamentally alter any legal interpretation of this will in your mother’s favour. Rather, it appears to be the word “absolute”.

The key thing with any will is whether beneficiaries survive the person writing the will, or not.

So let’s look at where we are. You uncle, who had no children (or spouse/partner, I assume) died leaving a will which benefited his siblings and a couple of small charitable bequests.

Outside the charities, there is only one beneficiary of a bequest and that is one of his sisters. She was given both his home and a sum of money.

While she has since died, the important this is that she was alive at the time your uncle died. Therefore, she inherits — even if she were to die before the estate was fully distributed after probate as seems likely in this case. As you say, your uncle’s home and the cash she was given both now form part of her estate.

That brings us to the residuary clause. Residuary clauses are very important. They cover what you want to do with anything not already specifically allocated in a bequest and, importantly, they also cover what happens if the person you do leave a bequest to dies before you. Without a residuary clause, that latter scenario would see the subject of the bequest treated under the rules of intestacy even if there is a valid will.

Legal advisers will always advise that a residuary clause is included in the will and, in your uncle’s case it is. The residuary clause, in this case, says: “Subject to payment of my lawful debts, funeral and testamentary expenses, give, devise, bequeath and appoint the residue of my estate to my brothers and sisters, namely A, B, C, D and E [my initials to preserve the privacy of all parties] in five equal shares for their own use absolutely.”

Of these, you say, four have died.

This brings us to the Doctrine of Lapse, which is defined under section 91 of the Succession Act.

It states: “Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.”

At first sight, this would suggest that the share of the four intended beneficiaries who predeceased him fall back into the residue for the benefit of any remaining, live beneficiaries — in this case, your mother. That is certainly the case with bequests that lapse in such a way.

However, some legal friends have suggested that a separate section — section 74 — of the Act comes into play. This says that where the dead person only disposes of part, anything else is distributed under the rules of intestacy. The key issue therefore is whether the share of the deceased sibling goes back to the residue (and thereafter to your mother) or is treated under the entirely separate rules of intestacy.

And that brings us back to the use of the word “absolutely” in your uncle’s residuary clause, as highlighted to me by Áine McGuigan, a partner at McGuigan Solicitors in Belturbet, Co Cavan.

This one word changes everything, Ms McGuigan explained. What might have been a residue shared in default as “joint tenants” — where all five are joint owners of the residue and the share of anyone who dies becomes the property of the four remaining etc — now becomes a residue shared as “tenants in common”.

And, as tenants in common, each of the five owns one-fifth of the residue. But they cannot inherit it because they died before your uncle. That brings us back to doctrine of lapse but without the safety net of a residuary clause. As a result, each of their respective shares is dealt with under the rules of intestacy — even though your uncle had a will. As the solicitor explained succinctly: “This means the last man [or woman in this case] standing in the residue clause does not take all.”

That then brings us to per stirpes, a concept that exists only in intestacy. It means that next of kin inherit any share that would have gone to their parent.

In this case, your uncle had no children (or partner, I assume). I also assume his own parents are dead, otherwise any surviving parent would inherit the share(s) of the residue that have to be treated under the rules of intestacy.

In their absence, all your uncles siblings would benefit from the four-fifths of the residue that will be handled in this way — including the aunt who inherited the home and later died even though she was never mentioned in the residue. And the rule of per stirpes means that any children or other surviving kin of each of your dead uncles and aunts will split their share equally.

So the solicitor’s initial view as expressed to you was wrong. Clearly when they looked into the intricacies of succession law further, it became clear to them that the intestacy issue had to be taken into account. So your mother will get one-fifth of the residue and a further one-sixth of balance of the residue that had been destined for her four brothers and sisters.

It very clearly shows two things: Words count, and never more so than in wills when the person is no longer around to explain what they mean. And, second, this isn’t an area for lay people. It really is important to get legal advice when you draw up your will.

* This article was edited on Monday, June 27th to reflect the impact of section 74 on the Succession Act in this particular set of circumstances.

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