Failure of gifts—lapse
Failure of gifts—lapse

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

  • Failure of gifts—lapse
  • Nature of lapse
  • Gifts to issue
  • Other exceptions from lapse
  • The effect of dissolution or annulment of marriage or civil partnership on Wills

Nature of lapse

To benefit under a Will, a beneficiary must survive the testator. A legacy is said to have lapsed and will fall into residue:

  1. if the beneficiary dies before the testator

  2. if the beneficiary dies before a condition precedent to the vesting of the legacy is satisfied

Testamentary gifts may be said to have lapsed for other reasons, eg the witnessing of a Will by a beneficiary or the disclaimer of the gift by the beneficiary.

A testator cannot exclude the application of the doctrine of lapse by including a clause in the Will to the effect that the gift will not lapse. However, a testator may ensure that a beneficiary or their estate will receive the gift whether or not the beneficiary survives by providing that the gift should in the event of the earlier death of the beneficiary pass to the beneficiary's personal representatives.

Specific legacies and devises fall into residue or, if there is no gift of residue they will pass on intestacy. Residuary devises that fail are treated the same as residuary bequests for the purpose of devolution of the estate. Where the gift is the residue or a share of residue, the gift will pass under the intestacy rules. The exceptions are if there is a provision in the Will that the gift is to

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