Q&As

Funds are received from a bank in an estate. There is a gift in the Will of monies in a specific account at that bank, but the bank are not able to provide information regarding whether the funds came from the specific account or another account, since they have deleted their records. Is there any process that can be undertaken to clarify whether or not the gift is payable or will fail?

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Published on LexisPSL on 10/03/2020

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • Funds are received from a bank in an estate. There is a gift in the Will of monies in a specific account at that bank, but the bank are not able to provide information regarding whether the funds came from the specific account or another account, since they have deleted their records. Is there any process that can be undertaken to clarify whether or not the gift is payable or will fail?
  • Payment service regulations

We have assumed that:

  1. the administration of the estate is governed by the law of England and Wales

  2. the bank accounts in question all have a situs in England and Wales

  3. the lack of information as to the source account of the funds should not, per se, be sufficient reason to cause the gift to fail

Consider the following points:

  1. if the gift is a specific gift, it would fail if the account were no longer in existence at the time of the testator’s death

  2. if the gift is a demonstrative gift, however, it will remain payable, but out of the residue of the estate

  3. whether the gift is specific or demonstrative will be a matter of construction

See guidance:

  1. Practice Note: Failure of gifts—ademption

  2. Commentary: I. Kinds of Legacies: Williams on Wills [30.1]

  3. Commentary: Types of legacies: Tolley's Administration of Estates [E6.1]

If the gift i

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