I found your article about the treatment of gifts under a will from August 2014 while searching on this inheritance topic, as I am currently in an almost identical situation.
My brother passed away two years ago, married with now adult children. My mother passed away last year leaving her estate (the family home) to her three children, with no qualifications to pass on to their families if they have passed.
In searching on the Citizens Information website, I found the following information which seems to contradict the outcome scenario you outlined in your article – specifically in that the gift to my brother does not die with his death.
I wondering if you had any other references or information in relation to this type of situation.
Regards,
Mr J.D., email
You’ve done your work and, in doing so, would appear to have unearthed a mistake in the last sentence of my piece back in 2014 which I thought I had since put to bed. I said in that piece that a residual benefit due to a person who had died before they inherited would die with them. That is not the case. The error was corrected in the following column in early September 2014.
Rules on inheritance can be complex and the current regime dates back to the Succession Act of 1965. It's a beast of a document, which is hardly surprising given the array of situations that can arise on the death of a person, depending on the way in which they have organised their affairs and on the complexity of human relations.
Section 98 of the Succession Act addresses your point specifically. It says the following: “Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.”
Put simply, what that means is that, for direct descendants – in this case your mother’s three children, the estate is divided equally between the three. And where any of those three has died, but has children themselves, that child’s portion of your mother’s estate is divided between the heirs according to the terms of their own will.
The only exception is if there were any specific bequests for any of these three, or for anyone else. In that case, the bequests would be handled first and the “residue” – ie what’s left of the estate – divided between the three thereafter.
This does not apply for non-linear descendants, such as cousins, for instance, or other distant relatives. This is at odds with other jurisdictions, such as the UK even, where the children of cousins can inherit in the event that a cousin named as a beneficiary of a will predeceases the person making the will.
Getting back to Ireland, the provisions under Section 98 of the Act mean that the position of the children of direct descendants is broadly the same whether they are named in a will or whether the person dies intestate.
Of course, there is no obligation to provide for non-dependant children in a will so if someone wrote a will that made some children and others beneficiaries but not other children (and those unnamed children predeceased the writer of the will), they would have no claim on the will and nor would their children.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice.
