Per Stirpes Distribution – Grand nephews/nieces

09 February 2023


Last week we looked at the impact of the per-stirpes rule when it comes to children. Today we are looking at the situation for siblings. In a previous post I noted two key criteria for per-stirpes, in that, there must be at least one surviving child/brother or sister in the pool and one pre-deceased child/sibling with children surviving. Also last week, we noted that in relation to children that per-stirpes applied to all issue.

This is not so with respect to siblings. This is because s. 69(1) and S 70(2) of the Succession Act limit the per stirpes rule to just children of pre-deceased siblings and no further. Therefore, unlike the parent child situation where grandchildren or great grand children could inherit, this is not the case with siblings.

s. 69(1) of the Succession Act states that

….if any brother or sister does not survive the intestate, the surviving children of the deceased brother or sister shall . .. .take in equal shares the share that their parent would have taken . . .

Note the significance here that it is the surviving children of the deceased brother or sister and not the surviving issue.

So this is reflected in the diagram below. In this case C dies and is survived by his sister D. He has two siblings that pre-decease him: sister B who also had a child I. That child I survived and so the share is preserved. C also had a brother A, who pre-deceased him, but brother A had three children, E, F and G (ie nephews/nieces of C). Niece F pre-deceased C, but niece F had a child (grandnephew H). Grand nephew H was alive when C died, but grand nephew H does not share, due to the rules under s. 69(1).

Hope this helps and if you have any questions on probate, will drafting or capacity issues please make contact with me through the solicitor query service on the website.