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Glossary entry

English term or phrase:

who shall attain the age of 23 years

English answer:

(heir) who lives to age 23 (reaches 23rd birthday)

Added to glossary by Yvonne Gallagher
Oct 21, 2017 03:46
6 yrs ago
15 viewers *
English term

who shall attain the age of 23 years

English Law/Patents Law (general) Estate Will
I am translating the following will (for privacy reasons, names have been changed).

"My estate is for such of them John, Peter and Bob as survive me and attain the age of 23 years (and if more than one in equal shares).

If any of my beneficiaries should die before me or survive me but die before attaining the age of 23 years in either case leaving a child or children who shall attain the age of 23 years, then such child or children should take the share to which their parent would have been entitled had he or she survived me and attained the age of 23 years."

My questions are about “who shall attain the age of 23 years” in the second paragraph:
Does it means that if John dies before “me” and leaves a child of 5 years old, then the child is not entitled for any estate, because he has not reached the age of 23? Or the child will be entitled to a share of the estate 18 years later when he reaches 23?

Given the child might die at an age between 5 and 23, does it mean that Peter and Bob’s shares of the whole estate may change. Wouldn't this create a lot of problems?

thank you very much in advance!
Responses
4 +2 (heir) who lives to age 23
3 +4 who survives and lives longer than 23 years of age
Change log

Oct 23, 2017 00:06: Yvonne Gallagher Created KOG entry

Oct 23, 2017 00:09: Yvonne Gallagher changed "Edited KOG entry" from "<a href="/profile/1300525">Yvonne Gallagher's</a> old entry - "who shall attain the age of 23 years"" to ""(heir) who lives to age 23""

Discussion

Yvonne Gallagher Oct 22, 2017:
@ Charles,@ Björn

You seem to be forgetting that we are given merely 2 sentences in a much longer will. (Have you ever seen a 2-sentence will?)
For me, the shareout percentage in these 2 sentences is clear for the eligible beneficiaries. I'm not going to repeat all that again .
I also said there could be years of interim periods before all the residual estate is paid out as each eligible heir reaches the age of 23 (and it is incorrect, as BDF has pointed out, to say "survive/live longer than 23") and I also surmised that other clauses would deal with the nitty gritty of these periods and the will/trust administration until eventually, all the estate has been settled on the eligible heirs and taxes and admin fees etc. have been paid. Tina is wrong to say the will can be settled fully merely by setting up trusts. In this case, the eligibe heirs are firstly the 3 sons (equal shares), so trusts can immediately be put in place for them until individually reaching age 23, but if 1, 2 or even 3 sons die beforehand, trusts will have to be put in place (upon such death/s) for each of their surviving children). But we can assume there ARE other clauses dealing with all this
Charles Davis Oct 22, 2017:
Wills Even if there is no actual dispute, obtaining probate can be expensive if wills fail to provide for every eventuality. I have personal experience of this.

I tend to see wills through the prism of Jarndyce vs Jarndyce in Dickens's novel Bleak House: finally the case is resolved, and it turns out there is nothing left to inherit: the whole vast estate has been swallowed up in legal fees.
Charles Davis Oct 21, 2017:
Björn is right It doesn't say anything about how the portion of the estate corresponding to a deceased beneficiary with more than one child is to be shared between/among his children. If equal shares are intended, it ought to say so. If anyone chooses to contest this point, the ruling will probably be that the shares should be equal, and if the heirs have any sense they won't contest it, but as Björn says, wills often bring out the worst in people. One of the heirs might claim that the testator intended them to get a larger share. Unnecessary legal expenses may be incurred arguing the case.

More importantly, in my view, it doesn't spell out the consequences of a scenario such as the one the asker raises: if John dies before reaching the age of 23, leaving children, what happens to John's share while they're waiting to see whether his children make it to 23? You would have expected some reference to a trust of some kind, as Tina suggests. And if John's children also die before reaching 23, what happens to John's share? We must assume that it will be shared equally between Peter and Bob, or their eligible children. But in a properly drafted will all these things should be explicitly spelled out.
Björn Vrooman Oct 21, 2017:
Hello Gallagy I thought about that, but I've gotten very wary of anything that could be misinterpreted after spending so much time on American blogs. As said, I wouldn't leave anything to chance here, not least because of the reformation rule. The only thing this document tells me personally is that the parent's share is passed on to the children. It doesn't say anything about how it will be divided among them. It may not matter that much in this case:
"When construing a will, the testator’s intent is to be gleaned from a sympathetic reading of the instrument in its entirety and not from a single word or phrase. ii It is of paramount importance that the testator’s actual purpose be determined and effectuated to the extent it comports with the law and public policy."
https://trustedattorneys.com/reformation-of-last-wills-chang...

But as far as I could see, other examples of wills clearly say "equal" somewhere. The Legal Will Kit example [hope you can view it] looks almost exactly like the one here, but does include "if more than one [child] in equal shares." It spells it out, so there's nothing to contest.

These kinds of things can get really ugly :-/

Best
Yvonne Gallagher Oct 21, 2017:
@ Björn

It DOES clearly say equal shares...so grandchildren get the share (divided among them) their father would have got IF he had survived to age 23 "such child or children should take the share to which their parent would have been entitled" so that's why I say, in my hypothetical example, that 'Sam' and 'Jeff' get one sixth each whereas 'Mary' would get one third but each of them MUST get to age 23 before they can inherit their own share
Björn Vrooman Oct 21, 2017:
PS [Sorry for the two typos; my fingers were faster than my brain =)]

Have a look at the "Legal Will Kit" by Enodare on GoogleBooks (p. 123, numbered "Tenth"). That is what I would've expected.
Björn Vrooman Oct 21, 2017:
@Auckland Translations I'm not big on wills; I know you'll have to think about that one day, but I usually like to avoid the topic. That said, Gallagy's explanation raised an important issue, IMO:
Nowhere does it say how much each of the grandchildren would get if they were to survive until 23.

Cf:
"If Robert Smith does not survive me for 30 days, to divide the residue of my estate into as many equal shares as there are of my children who are alive at my death, except if any child of mine has died before me and one or more of his or her children are alive at my death, then that deceased child will be considered alive for the purposes of this division and I direct my Trustee to divide that share equally among those children of that deceased child."
https://learnlsbc.ca/node/733

It says "equal" and "equally"; that's what I'm missing here. It reads: "such child or children should take the share."

Unless "codified" somewhere, couldn't you argue that the exact share would be up to the surviving children? Say, Sam from Gallagy's example turns 23, but his brother is 17.

I thought "per stirpes" would've been shorter:
https://www.thebalance.com/per-stirpes-definition-in-wills-3...

Best

Responses

+2
9 hrs
Selected

(heir) who lives to age 23

I think it's clear enough as the main stipulations for the Testator’s three children (and or grandchildren if predeceased by their parents) but I thought I'd tease out and expand these two sentences a bit more.

Yes, it does look like a rather complicated set-up as there may be many years of waiting to see who survives to age 23. And yes, the shareout percentage may eventually change as well, depending on number of actual beneficiaries.

The testator or testatrix is the person making the will. His/her heirs or beneficiaries are the three children who shall inherit with equal shares if they all reach age 23 =one third each.

If any of these three children die prior to their 23rd birthday, but leave a child/children (who are the Testator's grandchildren) then this child or children shall be entitled to their parent's share when he/she reaches age 23.

Let's say John and Peter both die before age 23, but John has one child, Mary, and Peter has two, Sam and Jeff, Bob can inherit his one-third share when he reaches age 23 but the other two thirds or residuary cannot be inherited until Mary, Sam and/or Jeff reach age 23.

If none of these Testator's grandchildren survive to age 23 then Bob inherits the other two thirds (unless there is another stipulation or proviso governing this scenario).

If Mary, Sam and Jeff all survive, Mary gets one third at age 23, Sam and Jeff get one sixth each when they (individually) reach age 23.

Obviously, the varying ages of the Testator's children (and/or grandchildren as the case may be) mean that the shares of the estate are being paid out at different times as each beneficiary reaches age 23.

There are probably other clauses in the will dealing with that interim "waiting" period or periods, and regarding the administration of the residuary estate after all creditors, taxes etc have been paid. But the estate administration will only be completed when all potential beneficiaries reach the magic age. There could also be other clauses dealing with a surviving spouse etc.


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Note added at 1 day20 hrs (2017-10-23 00:06:25 GMT) Post-grading
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Glad to have helped
Peer comment(s):
agree Björn Vrooman : I'll agree here because your expanded answer does help, IMO. I also agree with Charles and Jack that this should have been reworded. You should leave nothing to chance.
2 hrs
Thanks:-)
agree B D Finch
5 hrs
Thanks:-)
Something went wrong...
4 KudoZ points awarded for this answer. Comment: "Thank you so much for everyone's very helpful input! Especially to Yasutomo Kanazawa. Sorry the system does not allow me to award points to two persons."
+4
20 mins

who survives and lives longer than 23 years of age

To answer your questions:

If John dies and leaves a child of 5 years old, then the child is NOT entitled to the estate until 23 years old, since s/he has not attained the age of entitlement (i.e. 23 years old) but will be eligible for entitlement after 18 years making him/her 23 years old like you wrote above.

If the child dies at an age between 5 and 23, Peter and Bob's shares of the whole estate will change, since it does not mention anthing about John's grandson or granddaughter being eligible for taking the share instead of his/her parents. The will only mentions about John's child(ren), not John's grandson or granddaughter.



Peer comment(s):
agree Morad Seif
35 mins
Thank you!
agree Jack Doughty : But also with the askers suggestion that this wording might cause problems.
2 hrs
Thank you!
agree Charles Davis : This is what it means as it stands: any of the heirs named will not inherit unless and until they reach the age of 23, but as Jack suggests, the testator should have specified more clearly what happens to the estate in the interim.
4 hrs
Thank you Charles-san, have a nice weekend!
agree Tina Vonhof (X) : Often the testator makes provisions for a child or grandchild under age 23 to be held in trust by xxx until he/she reaches age 23 rather than holding up the division of the estate.
10 hrs
disagree B D Finch : If any of the heirs were to die on the dot of reaching the age of 23 they would still have fulfilled the condition. No need to live longer.
14 hrs
agree acetran
4 days
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