Our last article raised a number of common issues we come across when gifts are made in a Will. Here are some more common reasons for a gift failing which we will explore in this article.
A gift can additionally fail for one of the following reasons:-
The beneficiary or a spouse or civil partner of the beneficiary is a witness to the Will
This is one of the most well-known reasons amongst estate planners. Section 15 of the Wills Act 1837 prevents an attesting witness and their spouse or civil partner from receiving any benefit under the Will. Therefore if a gift is made to a beneficiary in the Will and that same beneficiary witnesses the Will, the gift to them in the Will, will be deemed to have failed.
We commonly get asked what the situation would be if a gift had been made to a beneficiary in a Will and their partner had acted as a witness. If they later married or entered into a civil partnership, would this cause the gift to fail? The short answer to this is no. If the beneficiary was not married to the witness at the time the Will was signed – even if they later marry, the gift would not be deemed to have failed.
Divorce
There is a common misconception that as with marriage revoking a Will, the act of divorce also does the same. This is not the case.
Section 18A of the Wills Act 1837 provides that where a testator has made an appointment of or made a gift to their spouse or civil partner and at a later date their marriage or civil partnership ends in divorce or dissolution, any gift or appointment to that spouse or civil partner shall take effect as if the former spouse had predeceased the testator.
There may be a provision in a Will which states that Section 18A shall not apply to the Will, meaning that the gift or appointment of the spouse or civil will be unaffected and still take effect.
The beneficiary predeceases the testator
If a gift is made to a beneficiary in the Will and that beneficiary predeceases the testator, that gift will fail. One way to prevent this from happening is to name a substitute beneficiary for the gift. If a gift is made in a will, whether this be a gift of money, gift of an item or a gift of property, if this gift does fail and no substitute beneficiary is named then the gift will form part of the residuary estate.
It is also possible to prevent a gift from failing by making a gift to a class of people at the time of the testator’s death i.e. my grandchildren. This means that any grandchildren who survive the testator will benefit from the gift and that gift will be shared equally between them unless the Will states otherwise i.e. for each to receive the gift.
It is important to note however that Section 33 of the Wills Act 1837 provides an exception in that if the testator makes a gift to a child or their descendant and that descendant predeceases the testator but leaves issue who are alive when the testator dies, the gift will not fail and instead pass to the issue unless the Will expressly excludes this from happening.
The beneficiary is guilty of unlawfully killing the testator
The Forfeiture Act 1982 states that if a person unlawfully kills, they are prevented from inheriting from the victims’ estate via Will or Intestacy. In instances such as this, the beneficiary is seen as having predeceased the testator.
This rule applies to murder, any type of manslaughter and other types of unlawful killing such as death by dangerous driving. It does not apply if a killer is found not guilty by reason of insanity.
The beneficiary decides they do not want the gift
There may be instances where the beneficiary may decide they do not want to receive the gift that has been gifted to them in the Will.
The reasons for this could vary but could include:-
- Not having a good relationship with the testator and therefore not wanting to receive anything from them after their death
- Not wanting their own estate to be increased by accepting the gift in the Will
Once the gift has been accepted it cannot be disclaimed. If more than one gift has been made in the Will, the beneficiary is at liberty to choose which gifts to accept and which gifts to disclaim. We would add that a beneficiary cannot part disclaim a gift. They would either need to accept the entire gift or disclaim it.
If you have any questions or need any guidance with the preparation of your Will or LPAs, please speak to one of our will writers today
