Ask Annie: What happens if a will pledges cash that is no longer there?

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Q. My husband's elderly aunt has just been taken into care. We have always understood that he will be a beneficiary of her will, along with other nephews and her godchildren.

Over the years, however, her circumstances have become much diminished and we don't believe she has very much money left – and what she has could shrink further now she is in care.

What would happen if she bequeathed more money than she actually had? I can understand there might be no residue, but what if, say, she left five nephews and godchildren £10,000 each but had only £20,000 in the bank?

Do the bequests get scaled back proportionally so the estate is divided equally between the five, or is there a "cab rank" system with wills, where the first two of the five named would get £10,000 each and the rest nothing? JL, Plymouth

A. If there is not enough money in an estate to cover all debts and expenses, these have to be paid in a particular order.

The first to have a claim is anyone who has incurred funeral and "testamentary" expenses (those to do with dealing with the will, such as solicitors' fees).

The next claimant is anyone owed a debt that has been secured on the deceased's property, then HM Revenue & Customs, followed by the Department for Work and Pensions (which will want a refund of any overpayment of benefit), and finally any person who is owed unpaid wages by the departed.

Only then do those named as beneficiaries of the will get a look-in. Legacies where a specific amount is mentioned come first, and other people get the leftovers.

Henry Frydenson from lawyers Mishcon de Reya explains: "If the estate is insufficient to pay the legacies in full, and unless there is a clear direction by the deceased stating otherwise, the legacies must be decreased in equal pro-portions.

"If one of the people left money in the will [a legatee] wishes to argue that his legacy was intended by the deceased to be paid in priority to the other legacies, then the onus of proving that lies on that person. The mere fact that a person is closely related to the testator does not automatically give them priority over other legatees."

Mr Frydenson continues: "The example set out above of legacies adding up to £50,000, while the deceased's estate when she dies amounts only to £20,000, would be covered by the points made above.

"However, if one were to have a more extreme situation where the legacies added up to a far larger sum, say £3m, and the testator's estate had for many years, and at the time that he or she drew up the will, comprised only £30,000, this could possibly raise queries relating to the mental capacity of the person making the will."

In such circumstances, the will might be set aside by the courts on the grounds that the person making it was not of "sound mind". In your case, however, this is unlikely to be an issue.

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