Advancements and the residue

Brendan Burgess

Brendan Burgess

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I had not heard of advancements until someone asked me my opinion on this and I am surprised that I had not heard of them before.

Five siblings have been left equal shares in a very valuable property.

The residue of the estate is to be divided between them equally.

The residue of the esate is say €50k.
One of the daughters got an advancement of €50k 10 years ago. (This is agreed)

My calculation is that the residue + advancement is €100k
So each person is entitled to €20k each.
But as the daughter has got €50k already, she cannot get any share in the residue.
So the four other siblings share the €50k between them and get €12,500 each.

The 4 siblings, reckon that the sister should give them €7,500 each to bring them back up to €20,000 or 20% of €100k.

I could readily understand that if the residue was €950k, then each of the others would get €200k cash each and the sister would get €150k cash.

Brendan
 
Thanks MOB

But that seems quite different. They are just dividing the entire estate.

This will specifies that the advancement is to be taken out of the residue.

Brendan
 
Interesting.

Without making further enquiries, I think the residue is just that and shares come out of it. I don't think the others can ask her to put the money back in.

Anyway, aren't they sharing a very valuable property????

mf
 
With advancements the first question must be- is the testators intention that the advancement be taken into account- in this case it seems that the testator has explicitly stated that it is.

The second question is- when is the advancement to be valued- when given or now.

After that it is a question of number crunching in relation to which you would be better than I.

However, if there is no explicit statement in the will, you can also factor in litigation costs of an applicaiton before the master of the high court.
 
Sorry, I did not explain it very well.

The siblings feel that the advancement should be taken from the entire estate.

The wording of the will said something along the lines of "the residue is to be divided equally but taking the advancement into account". That seemed to me to be very specific.

What is the general story on advancements?
The testator can specify if they are to be definitely ignored, definitely included, or included in part of the will only as in this case?

What is the purpose of the Succession Act bit on advancements? Is it that they are to be included unless they are specifically excluded in the will?

Brendan
 
s63 of the Succession Act deals with this issue. Advancements have to be "brought into account" but not repaid. As above, the siblings cannot insist on repayment of the 50k advancement. All that happens is that the residue is split 4 ways instead of 5.

You can include or exclude advancement in a will, or if a contrary intention can be shown that the advancement shouldn't be taken into account.
 
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