What haens to the estate when the beneficiaries have voided their entitlement

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tizi | 16:31 Fri 23rd Jan 2009 | Civil
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How is an estate disposed of when the only two beneficiaries have voided their entitlement by being witnesses to the will [the named beneficiaries being the deceased's only two children]


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If the will is void and there was no previous valid will then I assume the beneficiaries would be determined by the normal intestacy laws. Unless there's a husband I guess the two children would be next in line.
Barmaid will know
The will isn't void as such - it's the bequests that are void.

The residuary beneficiaries will inherit - if not named they will be determined by intestacy rules - ie other relatives.

If there aren't any then I'm not sure - maybe the crown? Or maybe the two children after all?
(2-part post):

I also think that, for a definitive answer, we might need the services of AB's helpful barrister, Barmaid. While I used to draft wills for a living, my knowledge is mainly associated with 'getting it right', rather than with what happens when things go wrong.

However, my understanding is that when a beneficiary signs a will it only removes their entitlement to receive any specific legacy from that will. It does not, per se, remove their entitlement to inherit from the estate.

Where a will 'leaves a hole' by not making it clear to whom a certain part of the estate should be given, that part of the estate is dealt with as if the deceased person had died intestate. In this particular case, it seems that the whole of the estate should now be distributed according to intestacy law. In the absence of a surviving spouse, that means that the two children of the deceased will each get half of the estate. (That might result in exactly the same outcome as if the will had been properly witnessed but not necessarily so. For example, the will might have sought to distribute the estate on a 70:30 basis, rather than 50:50).
Since the will is still officially valid (even if largely pointless), the appointment of any executor under that will remains valid. That means that the executor should seek grant of probate, rather than letters of administration (as would be the case if there was no will at all). However, if an executor signed the will (i.e. one or both of the children is named as executor), he or she is not entitled to claim any expenses from the estate for acting as executor. (In practice, that might not matter, since taking no expenses from the estate will just leave a larger amount to be shared between the two children of the deceased).

In practice, if nobody else knows about the existence of the will, it might be simplest to simply 'lose' it and seek letters of administration to distribute the estate under intestacy law.

Come on, Barmaid. We need you!

Chris - after what you just said (and to an extent dzug and factor30), you don't need me at all. The correct solution is exactly as you have said. The Will remains valid and the only parts that are inoperative are the bits that leave the legacies to the beneficiaries who witnessed the will (s15 Wills Act 1837, for the really obsessed amongst us). UNLESS there is an alternative provision, the parts that should have gone to the witnessing children fall on intestacy. Perhaps tizi can post who surviving relatives are and net value of estate so we can advise who gets what.

If I can just pick up a small point though. The Trustee Act 2000 s29(4) means that irrespective if whether the executor witnessed the will, he now can claim expenses since they no longer pass as a gift but are specifically allowed under certain circumstances under the TA. However, this will only apply to a professional trustee (out of pocket expenses have always been allowed, whether lay or professional, its just that prior to the TA, a professional charging clause was viewed as a "gift" and abated with all other legacies). In any event, prior to the TA, an executor (irrespective of s15) was always able to claim out of pocket expenses.
And ignore me repeating the last sentence, too much of that fermented grape juice stuff! Sorry!
Question Author
Thanks very much for your considered asked for some more information. The valuation of the estate hasn't been concluded yet but will almost certainly not exceed �150k [so no inheritance tax]. The deceased was a widow and the two beneficiaries are the only two children - under the terms of the will they are to inherit equally. So, from your answers, I think that the application of the intestacy provisions will result in the same outcome as that intended in the will.
Incidentally tizi, was the will professionally drawn up?
Question Author
No - the will was not professionally drawn up [it was completed to address the anxieties of the deceased in the hours before she died]... once again thanks for your interest and for your answers

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