WillsHow Gifts in Wills Can Fail

6 December 2019by Chris Smith0
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There are a number of different ways that gifts in a will can fail. These may be due to errors in drafting or signing, or alternatively may be reasons outside of the testator and drafter’s control. This week’s article will cover the different ways that gifts can fail along with different ways some of these can be avoided.

A beneficiary or the spouse of a beneficiary is a witness

S15 of the Wills Act 1837 denies an attesting witness and their spouse/civil partner from benefiting under the will. If this happens, the gift to that witness or their spouse is void and fails. The will itself remains valid.

It should be noted that if a beneficiary later marries an attesting witness sometime after the attestation this does not cause the gift to fail. S15 only applies where the beneficiary and witness were married at the time of attestation.

Divorce/Dissolution of Marriage or Civil Partnership

S18A of the Wills Act 1837 provides that where a Testator has made a gift to their spouse, or included an appointment of them (for example as executor or trustee) and at a later date their marriage ends, such gift or appointment shall take effect as if the former spouse had predeceased the Testator. S18C includes a similar provision relating to Civil Partnerships.

These provisions are subject to contrary intention in the will. If there are such cases where the Testator still wishes their soon to be former spouse/civil partner to be appointed or to benefit a clause showing contrary intention will need to be included in the will. These cases are rare and will involve a couple who are going through a non-acrimonious divorce and still want their soon to be former spouse/civil partner to benefit from the will or appoint them in some way.

Lapse

The doctrine of lapse is simply that a gift will lapse (i.e. fail) if a beneficiary predeceases the testator or if a corporate body dissolves before the testator’s death.

The doctrine of lapse can be avoided in a number of ways:

  • Including a substitutional gift if the beneficiary predeceases.
  • Making a class gift (in which case the gift will pass to the other members of that class).
  • Providing that the gift shall pass to that person’s issue (or, if the beneficiary is a descendant, allowing S33 Wills Act 1837 to apply).

Uncertainty

A gift can fail for uncertainty if it is not possible to ascertain either the subject matter of the gift or the intended beneficiary. This is covered in more detail in a previous article.

Disclaimer

A beneficiary has the freedom to disclaim any gift to them by will or intestacy and cannot be forced to take a gift against their will. Any person that does wish to disclaim can do so by a Deed of Disclaimer, or alternatively it may be seen from their conduct that they have disclaimed.

Abatement

Gifts may fail under the operation of Abatement. Abatement is the statutory order in which assets are used towards the estate’s expenses, liabilities and debts. This process will vary depending on whether the estate is insolvent or solvent and is covered in more detail in a previous article.

Unlawful Killing (The Forfeiture Rule)

The Forfeiture Act 1982 provides that if a person unlawfully kills a person, they are then barred from inheriting from that person’s estate via will or intestacy. In such a case, the beneficiary is seen as immediately predeceasing the victim. It will also have the effect of severing a joint tenancy where the killer and victim own a property as joint tenants.

This rule applies to murder, some types of manslaughter (only where there has been violence or a threat of violence) and other types of unlawful killing such as death by dangerous driving. It also extends to aiding, abetting, counselling or procuring the death. However it does not apply if a killer is found not guilty by reason of insanity.

The Act also gives the courts a power to modify this rule barring inheritance (as long as the killer has not been convicted of murder) however the killer must apply to the courts within three months of their conviction. The rule does however not preclude the killer from applying under the Inheritance (Provision for Family and Dependants Act) 1975, however some previous cases have failed as the will would have provided reasonable provision, the only reason the killer now lacked reasonable provision was due to the Forfeiture Rule.

Ademption

Ademption will occur where the subject matter of a specific gift no longer exists at the time of death. This will be covered in more detail in next week’s article.

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