Invalid wills

[kenafc]

Could a will be declared invalid if the main beneficiary is known to be deceased at the time of making the will? (ie evidence that the person making the will was of unsound mind ?).

[Ethel]

Not necessarily - it could be argued the testator didn't know the beneficiary was deceased, or it was a deliberate act so the descendants of the benficiary would inherit.

[fredpuli47]

That alone is not going to be evidence, if only for the good reasons given by Ethel.It is extraordinarily difficult to successfully challenge a will on the grounds that the testator lacked testamentary capacity (e.g.was of unsound mind) and : did not know or understand what it was that they were executing.The courts will do their best to preserve the will because they accept that old people, in particular,may be quite perverse in their dispositions in any case yet understand what they are doing.It is obvious that the testator may forget or not know that given individuals have died but still be fully capable of understanding what they are doing in making a will. The deceased beneficiary's share will fall into the residue and be distributed accordingly , unless the testator has given specific instructions to give it to some other named individual in the event of the original named beneficiary being unable or unwilling to accept it.

[themas]

fred

I'd appreciate it if you could clarify your last sentence please.

Are you saying that the bequest would fall into the residue because the beneficiary was dead before the will was made, or are you saying this would happen in any case where the beneficiary dies before the testator (unless the will includes instructions that the bequest is then to go to others, such as the beneficiary's children)?

I've been under the impression that it automatically went to whoever benefited under the will (or intestacy) of the pre-deceased beneficiary.

[dzug]

If a beneficiary pre-deceases the testator then unless the will provides otherwise his bequest goes into the residue of the estate.

The exception is if the beneficiary is a child of the testator - in this case the bequest goes on to his children, or if they too are dead, their children.

[fredpuli47]

dzug is right. To answer the second part :" the will speaks from death''. You have to look at the position at the time of the testator/ testatrix's death. It doesn't matter whether the beneficiary died before the will was signed and witnessed or between then and the death of the testator or whether the beneficiary never existed at all.

[fuzzball]

yep, far as i know. even if beneficiary was deceased and person making will was of sound mind, solicitor would have to give to deceased offspring, provided no other claim was made. else all goes to state