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No one can become an heir of another person until the latter is dead, though he or she may be heir-apparent or heir-presumptive. In your question you imply that the brother's daughter, although having no issue, is still alive - In the case of a male armiger the law presumes that as long as he is still alive he is capable of begetting an heir; the law seems to be silent in this matter for the female of the species but in these days of equality .....
I can't be more specific in this answer because I do not know which heraldic jurisdiction you refer to.
Regards,
Martin
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