Q&As

If 50% of the residue of an individual's estate is left to a married couple but the husband has died and there is no clause as to what should happen in this scenario, what happens to the 50% share? Does it fail entirely, does all 50% go to the wife, or does she receive a 25% share and the remaining 25% share fails?

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Published on LexisPSL on 05/05/2021

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

  • If 50% of the residue of an individual's estate is left to a married couple but the husband has died and there is no clause as to what should happen in this scenario, what happens to the 50% share? Does it fail entirely, does all 50% go to the wife, or does she receive a 25% share and the remaining 25% share fails?
  • Concurrent gifts—general rule
  • Wording which creates a tenancy in common
  • Doctrine of lapse
  • Right of survivorship

If 50% of the residue of an individual's estate is left to a married couple but the husband has died and there is no clause as to what should happen in this scenario, what happens to the 50% share? Does it fail entirely, does all 50% go to the wife, or does she receive a 25% share and the remaining 25% share fails?

The key factor in determining how the gift in residue will devolve following the death of the husband is the nature of the gift given to the spouses: was it the testator's intention that the spouses take the residue as joint tenants with right of survivorship, or was it that they take as tenants in common?

Concurrent gifts—general rule

Where property is given to several persons concurrently, the questions whether these persons take as joint tenants or

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