Will the gifts made in your Will fail?
For those of you that have a Will (gold star for you ;)) you may well have left gifts to specific people, or groups of people, to take place following your death.
However, sometimes these gifts will fail, this could be for a number of reasons, here we have a look at each of those reasons in a bit more detail to prevent this from happening to you…
The beneficiary (or their spouse or civil partner) of the gift has witnessed your signature on the Will
This is the most common reason that gifts in a Will fail. There are strict legal rules that state how a Will must be signed, and witnessed, in order for it to be valid and if these are not adhered to then part, or all, of the Will can fail.
Anyone that witnesses your signature (when attesting (signing) your Will) cannot benefit under your Will and neither can their spouse or civil partner. The remainder of the Will is valid but that gift will fail.
However, there are a couple of exemptions:
- If a beneficiary was not married to the witness at the time the attestation took place, and later married the witness, the gift can still take effect;
- If the beneficiary (or spouse or civil partner) was an ‘additional’ witness and the Will would still be validly executed without their signature and witnessing then their gift can still take effect;
- If the beneficiary (or spouse or civil partner) does not attest the original Will making the gift, but attests a later Codicil to the Will, the gift can still take effect;
- If the beneficiary (or spouse or civil partner) witnesses the Will but the gift happens under a Secret Trust, then the gift can still take effect.
This caveat has no effect in relation to a Privileged Will as a Privileged Will does not require witnesses.
You have since divorced, or the marriage or civil partnership has dissolved, between you and the beneficiary
Where you have made a gift to your spouse or civil partner and later divorce or dissolve the civil partnership, any gift that has been made to your former spouse or civil partner will fail. This is because your former spouse or civil partner will be treated as though they have predeceased you.
This is of course, unless there is something to the contrary stated within the Will, such as a Will being made in contemplation of a divorce, or dissolution of the civil partnership.
Lapse
If the beneficiary of your gift predeceases you then the gift will fail (unless, of course, you have considered this and made alternative provision within the Will in case of such a situation). Another way to prevent a lapse would be to leave a gift to a ‘class’ of beneficiaries such as, grandchildren or nieces and nephews living at the time of your death.
Ademption
Ademption occurs where the funds that you have stated to be given as gifts within your Will are no longer owned by you at the time of your death.
For this reason it is wise not to include funds from a specific bank or building society account as a gift as if this account is no longer held at the time of death the gift will ‘adeem’ and therefore fail. Similarly, with property it is wise to include a ‘catch all’ clause rather than a specific property as if that property is no longer owned at your death, the gift will fail.
Abatement
Abatement occurs if the Estate does not have enough assets and funds, after the payment of all the liabilities, debts and testamentary expenses, to satisfy the gifts within the Will.
If the Estate is insolvent and there are not enough funds to satisfy all the liabilities, debts and testamentary expenses, then all the gifts within the Will fail as all assets will be used to pay the liabilities.
If the Estate is solvent and the liabilities are all satisfied then the monies in the Estate are used to pay the liabilities and the remainder can be used to pay the beneficiaries, although this may be apportioned, depending on what is available after the payment of liabilities.
Uncertainty of the Gift
Gifts that are uncertain, vague or unclear could fail…or lead to a lengthy and very expensive court battle.
If you want to leave a gift within your Will, ensure that you are extremely specific with a description of that gift and specific about who you are gifting it to; ‘my daughter’ will not be appropriate where you have more than one daughter as it leaves it uncertain as to which daughter you meant.
The beneficiary disclaims their Gift
Yes, it happens a lot more than you may think…people really do refuse gifts given to them in a Will.
Just because you are named as a beneficiary in a Will does not mean that you have to accept the gift, you are free to disclaim the gift if you wish to do so. If this does happen the gift will fail and pass back to your Residuary Estate to be dealt with accordingly.
As you can see there are many reasons that a gift in a Will can fail (and not just limited to those that we have gone through here!) and so it is always important to take legal advice when drafting, and amending, your Will to ensure that your wishes can be carried out.
If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121
Leah Waller
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