23 April 2015
B P Collins helps two beneficiaries secure their full entitlement
The deceased left his estate to be divided equally between his three sons, on the basis that if any of his sons pre-deceased him then the sons' children (if they had any) would take that entitlement.
Prior to the deceased’s death, one of the sons did die, leaving two of his own children. The deceased’s surviving two sons obtained a grant of probate in the estate and became the estate's executors; but instead of correctly dividing the estate's assets, they gave less to their deceased brother's two children.
This was because the executors took the view that a particular asset need not be divided by three beneficiaries but only by two - thereby cutting out our clients - because their brother had pre-deceased them.
However, the executors had overlooked section 33 of the Wills Act 1837 which confirms (amongst other matters):
“where a Will contains a devise or bequest to a child … of the testator and the intended beneficiary dies before the testator, leaving issue and the issue of the intended beneficiary are living at the testator’s death, then, unless a contrary intention appears by the Will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.”
Matthew Brandis, partner and head of the firm's litigation and dispute resolution group, advised on the matter, commenting: "I was of the view that the Will did not contain any sort of "contrary intention" and that my clients had been badly short-changed because section 33 of the Wills Act is very clear. I was determined to secure them their rightful inheritance from their uncles."
B P Collins’ contentious probate team therefore threatened court action against both uncles, explaining in detail how they had misapplied the law to the clients' detriment. One uncle readily paid half of the claim, together with interest. However the second uncle failed to do so and vehemently denied the claim. This left the clients in the difficult position of having to decide whether to issue court proceedings or drop the matter entirely; not an easy decision given the family member involved.
Ultimately our clients did decide to issue proceedings against their uncle, and it was only at this stage that he capitulated, paid the claim, interest and court fee. Our clients therefore received their full entitlement from the estate.