When a Beneficiary Dies Before the Testator

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Inheritance claim solicitor Lee Dawkins takes a look at the doctrine of Lapse and the operation of Section 33 of the Wills Act 1837

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

A gift which lapses where there is no alternative clause will fall into the residue of the estate. It will then be distributed under the residuary provision. If there is no such provision then there could be 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 issue. This is where section 33 of the Wills Act 1837 applies.

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

Where—

(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 be expressly excluded.

If a child is not adequately provided for in their parent’s Will, or under the intestacy rules, then that child could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Under the 1975 Inheritance Act a child can claim reasonable financial provision from their parent’s estate.

Since the Court of Appeal decision in Ilott v Mitson, Inheritance Act claims made by needy adult children have become more commonplace, though they are still more difficult to succeed on than claims made by children under the age of 18.

If you have an inheritance problem then give us a call on 01272 372128 for a Free initial assessment. Alternatively you can email details of your case to us at [email protected]