Have you ever wondered why legacies in a Will may fail? Here are eight of the main reasons for legacy failure – and how to avoid them.
1. Beneficiary witnessed the Will
A beneficiary or their spouse/civil partner witnessing the Will is a big testamentary no-no, and will mean that the legacy in that person’s favour will fail, although the rest of the Will will stand. Witnesses must be completely independent.
2. Testator has got divorced
If the testator and their spouse or civil partner have got divorced since the Will was written, the law says that unless the Will provides to the contrary, it will be read as if the deceased’s former spouse or civil partner had died before them. That means that they won’t be able to act as an executor, and they won’t inherit anything. This usually makes sense, although following divorce many people prefer to rewrite their Wills, as part of making a fresh start more generally.
3. Beneficiary dies before the testator
For example, a Will might include a gift of “£3,000 to my god-daughter, Sophie”. If Sophie dies before the testator, the legacy will usually fail, unless the Will includes fallback provisions, for example in favour of Sophie’s children.
There is an exception to this general rule; under section 33 of the Wills Act 1837 (we in the world of Wills don’t like to rush legislative updates!) if you leave something to a child or grandchild but they die before you leaving children of their own, those children will automatically inherit their parent’s share.
4. Testator doesn’t own the item
If the testator has left a gift of a specific item such as one of their personal belongings, a certain bank account or some shares for example, and they no longer own that item when they die, the legacy will fail. When it comes to gift of shares, if a company has changed its name or re-organised it’s shareholdings in the meantime then the gift should still take effect, but if the company had been acquired by another company then the testator would own shares in a completely different company, and the gift would fail.
5. Not enough money to pay the legacies
If the testator’s estate does not contain enough money to cover their debts on death, the estate is insolvent, and all gifts in their Will will fail. If the estate does have enough money to cover its liabilities but not sufficient to cover all of the gifts in the Will then the gifts will be reduced accordingly. Gifts of residue are reduced first, then gifts of money, and lastly, gifts of specific items.
6. Impossible to identify the beneficiary/item
If the executors cannot identify the beneficiary mentioned in the Will then their legacy will fail. The same applies if the executors cannot identify the subject matter of the gift. I have seen this type of legacy failure in practice myself, in a very interesting probate case that I worked on many years ago now. The estate was very large (£15m) and much to the horror of the deceased’s team of London lawyers, it turned out that he had left a home-made Will. This left his estate to his children, whom he believed existed in another country, from his time spent on National Service there as a young man. The legacy failed for lack of certainty, because despite using family tree researchers, we were completely unable to find any evidence that such children existed.
An exception to this rule is that a gift to charity cannot fail for uncertainty – the executors will need to benefit another, similar charity if the original one no longer exists.
7. Beneficiary killed the testator
Well, how rude. Rightly, the law does not reward this sort of thing. If a person has unlawfully killed somebody, they are barred from inheriting from their victim’s estate, either via Will or on intestacy. They will be treated as having predeceased their victim, for inheritance purposes. This rule applies to murder, manslaughter and other types of unlawful killing such as death by dangerous driving.
8. Beneficiary gives up their gift
If you receive a gift from somebody under their Will or on intestacy, you are free to disclaim it and cannot be forced to accept the gift against your will. However, if you have clearly already accepted a gift then you cannot change your mind and subsequently disclaim it.
As you can see, there are many different reasons for legacy failure in a Will – some of them obvious and easy to avoid, and some less so. When making your Will, it is important to avoid all of these pitfalls, in order to ensure that your wishes will be carried out exactly as you had intended.
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