Q: I am a widow. When my father-in-law died the will stipulated that the inheritance would be divided equally with his living children and my own children. Money for my children went into a trust to be paid out in gradual instalments and looked after by the executor. Did I not have any rights to the inheritance that would have gone to my husband if he had been alive?
A: Dear Marge, you want to know what happens if named beneficiaries die first.
Your husband died before your father-in-law. This raises questions about wills and who inherits your late husband’s share. You mentioned that the will divided your late husband’s inheritance equally among his living children.
You question if you have inheritance rights as your husband’s spouse. The answer depends on the wording in your father-in-law’s will.
Here are some possibilities when beneficiaries die before will makers.
1. If your father-in-law made his will after your husband died, he may have specifically created gifts only for his three grandchildren. That would have been his decision and choice.
2. If your father-in-law made his will before your husband’s passing, his will could have included wording to deal with his son predeceasing him. Such wording may specify that his son’s inheritance passes “per stirpes,” that is, by bloodlines or as descendants through a common ancestor.
Per stirpes is the common term used to describe what happens when beneficiaries die first in many wills. Your children, in this case, would equally share their father’s inheritance. Per capita describes the alternative distribution “by head” in Latin, and your husband’s share may have passed to his siblings. Ontario has a special statutory provision to protect gifts to children, grandchildren, brother or sister. These gifts will not fail unless the will has a contrary provision.
Without reviewing the will and knowing the province where you reside, it is not possible to clarify more. Generally, your children who are your father-in-law’s grandchildren may have a copy of the trust or will terms. Reviewing this with your lawyer may confirm only that your children had rights to inherit.
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