Wills 9 : Grandchildren

Q: My uncle left a life estate to my aunt and the residue to my father.  If my father dies before my aunt, which he did, the residue goes to my father’s “surviving child or children, share and share alike.”  My brother, too, died before my aunt.

Yesterday, my aunt left to join my uncle.  At the funeral, my brother’s children told me that the word ‘children’ includes ‘grandchildren’ so that they can partake of the testamentary largesse, even though their father predeceased my aunt.

A: In determining a testator’s intent, the courts aim to give the words used in the will their everyday and ordinary meaning.  Thus, ‘children’ means immediate offspring, and it does not include grandchildren unless the will as a whole shows a unmistakable intent that it should.

Moreover, the death of your uncle’s life tenant, his widow, controls.  This is the common measuring device for the orderly transferences of decedents’ assets.  The life-estate interest terminated only upon the death of your uncle’s widow, your aunt.  Your brother’s predeceasing her precludes his heirs from asserting that any entitlements ‘inchoately’ vested in your brother before your aunt’s death to accrue later to his children’s benefit.

Predictability is a crucial element in the field of decedents’ estates.  Settled rules are necessary, and they are necessarily relied upon.  When a will is being written, every possibility should be considered in advance and not left for the future.  If your uncle wanted to provide for your brother’s children, in these circumstances, his attorney was required to use different language.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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