Bequests That Fail To Take Effect

The effect of divorce or annulment of marriage or annulment of civil partnership

Dissolution of marriage or civil partnership does not invalidate a will, but a decree absolute (not a decree nisi), makes any bequest in a will to the spouse or civil partner take effect as if the former spouse or partner had died on the date the decree becomes absolute, leaving bequests in the remainder of the will valid. Usually the bequest will become part of the residue of the estate and go to the residuary beneficiaries, but if the bequest is of the entire estate or of a share of the residue of the estate, it will be treated as not having been disposed of by the will and will be inherited according to the laws of intestacy.

Similarly, the provisions in a will conferring powers of appointment on a spouse or partner (that is, power for him to appoint or choose a beneficiary for part of an estate) or appointing him as an executor or trustee, take effect after a decree of dissolution of marriage or civil partnership as if the former spouse or civil partner had died on the date the decree became absolute.

Unless a contrary intention is apparent from the will, an appointment of a spouse or civil partner as a guardian of an underage child is revoked by a decree absolute, annulment or dissolution which is either made in a court in England or Wales or would be recognised by such a court.

Bequests to the witness to a will or witness’s spouse or civil partner

Two independent witnesses to the testator’s signature to a will are required to make a will or codicil valid, and if a beneficiary or the beneficiary’s spouse or civil partner witnesses the will or codicil, the intended beneficiary will lose the bequest made by the document unless the offending witness’s signature can be regarded as superfluous because there are two other interested witnesses.

If there are not two other disinterested witnesses, although the person who is named in a will as the beneficiary will lose the bequest the remainder of the will will not be affected.

Bequests contrary to public duty

Conditions attached to gifts and gifts themselves may be void and of no effect because they are contrary to the public policy of the moment. Exactly what is considered to be contrary to public policy changes from time to time and if there is any doubt advice from a lawyer should be sought. A few general principles can be stated.

Conditions that weaken the family unit or the institution of marriage are contrary to public policy, as a conditions that interfere with the choice of one’s religion. Therefore a condition attached to a gift to a son that is dependent upon the son leaving his wife or converting to Catholicism will not take effect because both conditions are void being contrary to public policy.

Conditions contrary to the inherent legal nature of property, for example, that is shall not be sold or shall be boarded up and not used for a long specified time, are contrary to public policy.

A provision in a will that a bequest is to be forfeited if the beneficiary challenges the will is not considered to be contrary to public policy, but the bequest might fail to take effect for reasons of uncertainty, unless it is carefully drafted.

If the condition upon which the bequest is given is merely prohibited by law or public policy, the condition will be void, but if the bequest is considered to be essentially evil, e.g. a bequest conditional upon murdering someone, the bequest will fail completely.

If the intention is that the gift shall only take effect if the condition is fulfilled (that is, the condition is what is known as condition precedent) and the condition is void, the gift will fail completely, but if the intention is that the gift shall take effect but cease if the condition is fulfilled, that is, the condition is what is known as condition subsequent, the gift takes free from the void condition. An example of  a gift with a condition precedent is a gift to a son if he successfully completes the university course he is taking, and an example of a condition subsequent is a gift to him, but if he fails the course, then to the testator’s daughter, although both of these conditions are valid ones.

Gifts which break the rules against perpetuities and accumulations

The law contains very complex rules which prevent the income from being accumulated and added to the capital of the bequest by the personal representatives for an excessive period, rather than distributed to the beneficiary, and which prevent bequests being made to beneficiaries whose identity may not be ascertained for an excessively long time in the future. These rules are known as the rules against perpetuities and accumulations and were substantially changed by the Perpetuities and Accumulations Act 2009 in relation to wills made after, but not wills made before, 6th of April 2010. If a bequest has been made and the identity of all beneficiaries entitled to it might not be ascertained within twenty-one years of the testator’s death, for example, a gift ‘to my grandchildren whether born before or after my death’, be sure to consult a solicitor about the wording and its legal effect. Similarly if the income from a bequest is to be accumulated for a period which could exceed twenty-one years, consult a solicitor.