Failure of gifts—effects
Failure of gifts—effects

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

  • Failure of gifts—effects
  • Reasons a gift may fail
  • The classification of legacies and devises
  • The effect of failure of a gift
  • Acceleration

Reasons a gift may fail

There are several ways a gift may fail. These include:

The doctrine of lapse—failure to survive the testator

If an intended beneficiary predeceases the testator, the gift to them lapses and does not take effect. The Will may require the beneficiary to survive the testator for a specified period of time. On an intestacy the statutory requirement is that the surviving spouse or civil partner must survive the deceased by 28 days. A gift to children or remoter issue of the deceased may be saved by section 33(1) of the Wills Act 1837 (WA 1837), subject to contrary intention in the Will. The intestacy rules makes a similar provision.

Note that it has been held that where a gift is made to satisfy a moral obligation, the gift does not lapse by the beneficiary predeceasing the testator.

Dissolution of marriage or civil partnership

When a marriage or civil partnership ends in dissolution or annulment then, unless a contrary intention appears in the Will, the following do not take effect:

  1. any appointment of the former spouse or civil partner as executor

  2. any power of appointment conferred on the former spouse or civil partner

  3. any gift to the former spouse or civil partner in the Will

The former spouse or civil partner is treated as having died on the

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