We are often asked what happens when a person leaves a gift to a beneficiary in a will, but the recipient of that gift dies before the person making the will.
The usual principle that applies when a beneficiary dies before, or predeceases, the Will maker is that the gift will fail. This is known as the doctrine of ‘lapse’.
Where a gift lapses and there is no substitution or alternative clause it will form part of the residue of the estate. If there is no residuary provision then a partial intestacy might arise.
There are however exceptions to the doctrine of lapse.
One such exception concerns gifts to children (or remoter issue). In this situation section 33 of the Wills Act 1837 comes into effect.
So, if a parent leaves a gift to a child in their Will and that child predeceases the parent, leaving a child of their own, then under section 33 that child will be entitled to receive the share their parent would otherwise have taken. If there is more than one child then they shall each be entitled to an equal share of the gift.
It is possible to exclude section 33. Exclusion of the principal can also be implied. Section 33 will not apply if the gift to the child is contingent and their death occurs before that contingency is met.
Where the child of the deceased survives, but dies before the estate is administered, then their estate will benefit from the gift; assuming there is no operative survivorship clause. That share will then be distributed to the beneficiaries named in the child’s Will or according to the rules of intestacy if no valid will has been made.
Where a child is not adequately provided for in a parent’s Will, or under their intestacy, that child may consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Under the Inheritance Act children can seek financial provision from their parent’s estate where reasonable provision has not been made.
Children under the age of 18 will generally find making such a claim far easier than adult children, though since the decision in Ilott v Mitson things have got a great deal easier for older children. The Court of Appeal clarified the correct approach for the courts to take in these claims which has been very much to the advantage of needy adult children.
If you are involved in a Will dispute or an Inheritance Act claim then call us now for a Free initial assessment on 0808 139 1596 or email details of your case to us for review.