Bequests That Fail To Take Effect Part 2

Irreconcilable bequests

Generally speaking, if two clauses of a will are clearly irreconcilable, effect should be given to the later clause and not the former.

Insufficient assets

If there are insufficient assets to pay all the debts and liabilities there is a specific, complex order in which all the debts must be paid.

Properly payable debts, liabilities of the estate and funeral and testamentary expenses are payable in priority to bequests made by the will or claims to entitlement by the next of kin.

When there is sufficient money to pay all the funeral and testamentary expenses and the debts and liabilities of the deceased, but insufficient to pay all the beneficiaries named in the will, then unless there is any contrary provision in the will, those who are bequeathed specific things should have their bequests first, followed by those who are bequeathed specific amounts of money. If there is not enough to pay all the gifts of money they are reduced in proportion.

Bequests to people who have predeceased the testator or organisations which have ceased to exist

Unless there is a provision to the contrary in the will or the gift is made to fulfill a moral or legal obligation (for example, to repay a debt which has been discharged under the law of bankruptcy or which is statute barred), a gift made by will to a person who died before the testator or to an organisation which no longer exists at the time of the testator’s death fails and does not take effect. An exception to this general rule is contained in Section 33 of the Wills Act 1837 (as amended). By this section a bequest to a descendant of the testator who dies before the testator, leaving a descendant who is living at the testator’s death, will take effect as a bequest to the descendant who is living at the testator’s death, unless the will shows a contrary intention.

Bequests of items which no longer exist

If the testator no longer has such an article as is described in a gift (for example, a gold watch, where the watch has been sold or lost after making of the will), the gift does not take effect, but if the testator, having had such an article, disposes of it and acquires another fitting the description (i.e. another gold watch), the gift takes effect in respect of the substituted object (the new gold watch). In other words, unless there is evidence that the contrary is intended as regards things given by the will, the will takes effect in the circumstances which exist at the moment of death. However, this rule does not apply to the description of persons in whose favour gifts are made by will, e.g. a gift to ‘John’s wife’, the rule being that the bequest is to the person who fulfilled the description at the time that the will was made and only if there is no such person does the person who fulfills the description at the time of death or later inherit.

Gifts of other people’s property

There is a rule in English law known as doctrine of election to the effect that a person who accepts a benefit conferred by a document must also accept every other provision of that document and give up any other right he possesses which is inconsistent with the document. Thus if a testator who does not own an asset purports to give it away by his will and also gives a gift to the true owner of the asset, the true owner must either refuse his bequest or give up his own property or the value in compensation to the other beneficiary.

Legacies to creditors

Unless an intention to the contrary is shown, there is a presumption that a legacy to a creditor which is equal to or greater than the debt owned is given in satisfaction and payment of the debt. An intention may be shown to the contrary if, for example, the will directs the executor to pay all the testator’s debts or if the legacy is payable only at a future date or upon the happening of an event in the future.

Substitutional legacies

In the absence of evidence to the contrary, if a will bequeaths the same thing or an identical sum, twice, to the same legatee, the legatee is only entitled to one of the legacies and it is assumed that the second legacy is a repetition of the first. If the two legacies are of unequal amounts or are given in different documents, for example, one in a will and the other in a codicil to the will, the presumption does not apply and both are payable.

Bequests to a spouse or civil partner followed by the same bequests to issue

If a will or codicil leaves an absolute gift to the testator’s spouse or civil partner but the same document purports to give an interest in the same property to his issue, then, unless the document shows a contrary intention, the spouse or partner will inherit the property absolutely, and the purported gift to the issue will not take effect.

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