Eight Reasons a Gift by a Will May Fail

Eight Reasons a Gift by a Will May Fail

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, explore the eight primary reasons why a gift by Will might fail

An assumption the Will in question is valid

In this instance, we are not looking into the question of whether a Will is valid and/or the grounds to challenge or contest it. We are assuming it is valid. For issues concerning the question of whether a Will is legally valid look no further than one of our recent blogs as follows:

What are the eight reasons a gift by a legally valid will might fail?

Notwithstanding a Will might be legally valid, there are still eight reasons why a gift or bequest under a legally valid Will might fail.

First reason – the beneficiary or a spouse or civil partner of the beneficiary is an attesting witness

This is a very well-known ground. Under section 15 of the Wills Act 1837 an attesting witness and their spouse or civil partner are unable to receive any benefit under the Will they witnessed for the testator. However this will not cause the Will to fail or be rendered void in law.

Section 15 says:

Gifts to an attesting witness to be void.

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.

Second reason – the divorce or dissolution of a marriage or civil partnership between the testator and the beneficiary

Section 18A of the Wills Act 1837 confirms that where a testator has made a gift to his/her spouse under a Will and they subsequently divorce (or the civil partnership ends) then the gift takes effect as if that person had died before the testator.

Third reason – Lapse

If the beneficiary under a Will died before the testator then the gift to that beneficiary lapses unless there is a specific substitution clause (whereby the lapsed gift passes to someone else).

There is one exception. Gifts to children or remoter descendants (grandchild etc) pass to their issue unless there is some contrary intention in the Will – see section 33 of the Wills Act 1837

Fourth reason – Ademption

If the subject matter of the gift (for instance where a specific property so gifted was sold prior to the testator’s death) no longer exists then it will fail by ademption.

Fifth reason – Abatement

This basically relates to the availability of assets to make the gift. If there are insufficient then the gift will fail. Typically this is found where after the payment of a mortgage and other debts and testamentary expenses, there is not enough money left to actually pay the gift.

If the estate is insolvent (where the assets of the estate are insufficient to satisfy all of its debts) then all of the gifts in the Will fail.

Sixth reason – Uncertainty

A gift will fail for uncertainty if it is not possible to identify the subject matter and/or to whom it is supposed to be paid.

Seventh reason – Unlawful Killing

The Forfeiture Act 1982 applies here. If a person who is a beneficiary to the testator’s estate by his/her Will unlawfully kills the testator, he/she is then barred from inheriting under the Will. The beneficiary is seen as having died immediately before the victim. This applies to murder, manslaughter and other types of unlawful killing.

Eighth reason – Disclaimer

A beneficiary can decide to disclaim any gift to him/her under a Will – in other words he/she can decide not to accept it. In this instance a Deed of Disclaimer will be required to give
effect to it.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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