In a will that states "I divide into as many equal shares as there are living children of mine and deceased children of mine with issue then living" - does that mean only living children at the time of the will or would it allow a child who died several years ago before the will was drafted a share in the will?

IF they had children or a spouse that survives it would keep them included. E.G. 4 children... one of which is deceased... they had a child themselves... if that wasn't specifically stated as such.. the three surviving kids would get a third... but the grandchild of the deceased would get nothing instead of 25%.

The significant time would be the date of death of the decedent; the date the will was written doesn't really matter. So the shares are determined with reference to who is alive at the time of decedent's death.

If decedent had issue (a child, grand-child, etc.) who died before decedent wrote the will, decedent should have named that person specifically. If he or she didn't, the presumption is that the previously dying person's issue do not inherit.

The way I read that clause. Any living children at the time of death, along with any issue of children still living share equally.

Lets use an example. The testator had 5 children. Of those 5 children only three survive him. However, he has a grandchild from one of the children who died. So the estate is split 4 ways. But if that one child had 2 children, then they would split a one quarter share.

After having read it four or five times, I'm reading it the same as Scott. Is the attorney that drew up the will still in practice? If so, is s/he would probably be a good resource to ask. Depending on how old the will is s/he may not remember that particular will specifically but they (generally) would have a good idea after reading it again.

I'm reading it the same as Scott as well. The phrase " living children of mine and deceased children of mine with issue then living", means any children of the deceased, and any grandchildren of his deceased children that are living. Okay, that may be even more confusing. Any children of his. If he has deceased children that had children of their own, any of those grandchildren that are still living, get a share of the will.

I think the clause is clear that his surviving children and grandchildren get a share. What I think is less clear, but the way I read it, is that the estate is divided equally among among his children, only if they have surviving grandchildren, and that his grandchildren share only their parents share.

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Originally Posted by ScottGem

I think the clause is clear that his surviving children and grandchildren get a share. What I think is less clear, but the way I read it, is that the estate is divided equally among among his children, only if they have surviving grandchildren, and that his grandchildren share only their parents share.

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I agree. A share goes to each "deceased children of mine with issue then living"; to be divided among those grandchildren (issue of a deceased child). So, using Scott's example, if testator is survived by three of his or her children, and if there is one deceased child with issue still living at the time of the testator's death, the estate would be divided into four equal shares, and the fourth share would be divided among those grandchildren.

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Originally Posted by stinawords

After having read it four or five times, I'm reading it the same as Scott. Is the attorney that drew up the will still in practice? If so, is s/he would probably be a good resource to ask. Depending on how old the will is s/he may not remember that particular will specifically but they (generally) would have a good idea after reading it again.

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No, there is really no ambiguity, so the attorney's testimony as to what testator intended is not relevant.