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Wednesday, November 16, 2016

My father was a beneficiary but died before the testator. Do I get his share?

Deciding who gets what under a will can sometimes be confusing. This is particularly true when a named beneficiary has passed away. A reader recently asked me about this situation:

"I am a Manitoban whose brother has passed in April 2016. My father was a beneficiary but died in 1998. My brother's will included my father as a beneficiary in other words he was not removed from the will. According to my understanding of the Wills Act, specifically #25, 25(1) and 25 (2) my sister and I should inherit my father's share equally. The will showed my mother, my other brother (both still alive) and my father (dead) as beneficiaries.

The testator also had a daughter and forgot to update his will to include her. She lives in the U.S. but just turned 18 in March. She is attending college. The ex common law partner has been out of the picture a long time. Am I entitled to my father's share? 

I think the Intestate Succession Act 5 (1) also supports my line of reasoning. Am I incorrect in believing I am entitled to something ?"

If your father was a beneficiary under the will but died before your brother did, there are two possibilities for what happens with his gift. They depend on the wording of the will because specific wording in a will is always going to supercede the default position set up in the legislation.

One possibility is that your brother's will simply left the gift to your father without  making any statements about what would happen with the gift if your father predeceased him. If that is how the will is worded, you are correct that section 25 (shown below) will apply but it isn't going to do what you think it will. Section 25 says that if a gift under a will cannot be given because the beneficiary has died, then the gift falls into the residue of the estate. This means the share that your father would have received will be shared among the other named residuary beneficiaries. That would appear to be your mother and brother.

25          Subject to sections 25.1 and 25.2 and except when a contrary intention appears by the will, real or personal property or an interest therein that is comprised, or intended to be comprised, in a devise or bequest that fails or becomes void by reason of the death of the devisee or donee in the lifetime of the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, is included in the residuary devise or bequest, if any, contained, in the will.

The other possibility is that the will DOES say something about what happens to the share of a beneficiary if that beneficiary dies first. For example, it might say that if your father died first, his share would go to his children, or to a charity, or to a particular person. A statement like that would be the "contrary intention" mentioned in the first line of section 25. If the will gives instructions like that for the disposition of the gift, then your father's share would be distributed according to those instructions.

Another example of wording that might affect the gift is the addition of the words "if he survives me" after the gift to your father. That would mean your father's share would not be passed on to his children unless specified in the will.

Section 25(1) does not apply because it deals with estate tails, which are not in play here. Section 25(2) also doesn't apply because it deals with what happens when "issue" of the deceased pass away before the deceased. Issue are children, grandchildren, etc, and not the parents of the deceased.

The age of majority in Manitoba is 18. I understand that your niece turned 18 before your brother died. Normally an adult child who does not have a disability does not automatically have a right to receive a share of her parent's estate, but in this case she is a student. She might be able to make a case for a share of the estate, though that would affect the entire estate and not just the share that would have gone to your father.

The Intestate Succession Act is irrelevant here because your brother was not intestate. "Intestate" means dying without a valid will.

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