Contents of Wills—residuary gifts
Contents of Wills—residuary gifts

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Contents of Wills—residuary gifts
  • What a residuary gift comprises
  • Determining whether a gift is a gift of residue
  • Failure of share of residue
  • Residuary legatee
  • Settled residue: the rule in Howe v Dartmouth
  • Settled residue: the rule in Allhusen v Whittell
  • Trusts (Capital and Income) Act 2013

What a residuary gift comprises

The residuary estate will not necessarily comprise only cash, but will usually include other assets that have not been sold during the course of administration. Section 33 of the Administration of Estates Act 1925 (AEA 1925) defines the residuary estate as the residue of money and any investment for the time being representing the same, including any part of the estate of the deceased that may be retained unsold and if not required for payment of funeral, testamentary and administration expenses, debts and other liabilities and pecuniary legacies. This is whether:

  1. the testator has attempted to dispose of it and failed, or

  2. the disposition fails by lapse or other event

Unless the Will shows an intention to the contrary, a residuary gift includes everything owned by the testator at their death that has not been effectively disposed of by other provision in the Will.

There is a distinction between:

  1. a gift of the residuary estate

  2. a gift of the residue of the residuary estate

If a gift of the residue of the residuary estate lapses, the result is an intestacy.

The fact that the testator wrongly believes that certain property does not belong to them and is not theirs to dispose of, and says so in their Will, does not exclude it from the residue.

A residuary gift also