Some Reasons Why Gifts Will Fail In a Will

 

This is surprisingly one of the most common reasons that a Will fails because section 15 of the Wills Act 1837 prevents an attesting witness and their spouse or civil partner from receiving any benefit under the Will. If a gift is made to a beneficiary in the Will and that same beneficiary witnesses the Will, the gift to them in the Will, will fail. 

 

There is a common misconception that as with marriage revoking a Will, divorce also does the same, however this is not the case. 

Where a testator has made a gift to their spouse or civil partner and at a later date their marriage or civil partnership ends in divorce or dissolution, the gift to that spouse or civil partner will fail as it will be treated as though the former spouse or civil partner has died before the testator. 

There may however be a provision put in a Will which states that Section 18A shall not apply to the Will, meaning that the gift to the spouse or civil will be unaffected and still take effect. 

 

If a gift is made to a beneficiary in a Will but that beneficiary predeceases the testator, that gift will fail. A way to prevent this from happening is to name a fallback or substitute beneficiary instead. If a gift has been made in a will and this gift does fail and no fallback beneficiary has been named then the gift will form part of the residual estate. 

Please note however that Section 33 of the Wills Act 1837 provides an exception in that if the testator makes a gift to a child or their descendant and that descendant predeceases the testator but leaves children who are alive when the testator dies, the gift will not fail and instead pass to the children unless the Will deliberately stops this from happening.