Gift in a Will and its Lapse

What Happens if a Beneficiary Dies Before the Testator/Testatrix?

If a beneficiary dies between the point when the Will was made and the death of the testator/testatrix, the beneficiary’s estate will usually have no benefit from the Will. If the beneficiary has predeceased the testator/testatrix, the benefit is said to have lapsed.

IHTM12084 – Succession: Wills: Legacies and devises: Lapse (England, Wales and Northern Ireland)

Lapse occurs when a gift made in a Will fails because of the death of the legatee or devisee in the testator’s (IHTM12001) lifetime. Where the legacy or devise is anything other than residue, that property will normally fall into residue. However, if the deceased legatee or devisee is already a residuary beneficiary, the property devolves as it would on intestatacy (IHTM12101). The above does not apply where the gift is a life interest.

There are exceptions to the rule:

Where there is a gift in a Will to a child or remoter issue of the testator or testatrix (IHTM12001) the gift will not lapse if the dead beneficiary leaves issue (children) who are alive at the testator’s death (in England & Wales, the Wills Act Section 33 as amended by the Administration of Justice Act 1982 Section 19; in Northern Ireland, article 22 of the Wills and Administration Proceedings (NI) Order 1994).

Also, if the testator or testatrix makes substitutory provisions in the Will. For example a gift to ‘such of my children as are alive at my death’ will clearly benefit surviving children and not the issue of any predeceasing child.

For example, if under my Will I have left 70% of my residuary estate to my son but he predeceases me without living any issue, his 70% benefit under my Will will pass onto his surviving wife on intestacy upon his death as the son is already a residuary beneficiary under my Will.

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