Gifts to children in Wills

A Will takes effect on death and can therefore be revoked at any time while the person making the Will is still alive.

As a result of this the general rule is that if a beneficiary dies before a testator any gift under the Will lapses [fails]. Where the gift is a simple legacy and the person to receive it has died before the testator any gift to him/her lapses.

Where the gift is a simple legacy and the legatee has died before the testator the subject matter of the legacy will fall into residue and increase the value of the residuary estate.

There are important exceptions to this so called ‘doctrine of lapse’ the most important of which is section 33[1] of the Wills Act 1837[the Wills Act] which provides a saving for the issue of the testator.

The statutory saving in the Wills Act has wide reaching implications .Section 33[1] provides that :

A Where a Will contains a gift to a child or remoter descendant of the descendant of the testator and

B the intended beneficiary dies  before the testator leaving  issue and

C issue of the intended beneficiary are living at the testator’s death;

Then unless a contrary intention appears in the Will the gift shall take  effect  as a gift to the issue[which means children or grandchildren and their descendants down through the generations] living at the testator’s death.

For example Tom the testator leaves his estate to his 2 sons in equal shares.

His eldest son Peter dies before Tom leaving 2 children.

Section 33[1] Wills Act operates to ensure that  the 2 grandchildren of Tom take Peter’s  half in equal shares.

Although it’s not possible to exclude the doctrine of lapse under a Will the testator may of course provide for an alternative in the Will so that another beneficiary takes the gift instead. This could be done either by an accrue to the other shares or a gift to another  person.

The effect of an accruer is that the failed gift accrues or is added to another gift that already exists under the Will. An accruer in the widest sense may be implicit in the wording of the gift. Where ,for example, a testator makes a gift to two or more people  and it is clear that the failed share of any who predecease the testator will  increase the share[s] of those who survive there will be an implicit accruer.