What happens if a beneficiary dies before the testator?

Home / Inheritance Disputes  / What happens if a beneficiary dies before the testator?

For a free case assessment call 0808 139 1606 click to call or email us

Inheritance claim solicitor Lee Dawkins takes a look at what happens if a beneficiary dies before the testator and what happens to their legacy in the will.

When a gift is left to a beneficiary in a will and that beneficiary dies before the testator the gift will usually fail, or ‘lapse’, to use the technical legal term.

A gift which lapses where there is no alternative clause will go into the residue of the estate. It will then be distributed under the residuary provision in the will. If there is no such provision then there could be what is known as partial intestacy.

However there are exceptions to this general rule.

The most important exception to the doctrine of lapse involves gifts to the testator’s children.

Section 33(1) of the Wills Act states as follows:


(a) a will contains a devise or bequest to a child or remoter 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 by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.

This means that if a parent leaves their child a gift in a will and that child dies before the parent, leaving children of their own, then those children (the testator’s grandchildren) shall receive the share that would have gone to their parent had they not pre-deceased.

Section 33 can however be expressly excluded by the testator when they make their will. For instance they can specify that if a child of theirs pre-deceases then that child’s share shall be divided between their other surviving children ie the deceased child’s siblings.

If you have a query about what happens if a beneficiary dies before the testator or require guidance on any other inheritance issue then give us a call on 0808 139 1606 for a Free initial case assessment. Alternatively you can email details of your case to us at [email protected]