Exception to the Doctrine of Lapse.

5 years ago

We consider the Exception to the Doctrine of Lapse – See previous web article.

When a beneficiary dies before the testator, the gift or legacy to them will lapse/fail, and fall into the residue.

Under Section 33 (1), of the Wills Act 1837, As Amended by the Administration of Justice Act 1982, Section 19, if a will contains a devise, or bequest to a child or a remoter descendant of the testator; and the intended beneficiary dies before the testator, leaving issue and issue of the intended beneficiary are living at the testator’s death, then subject to any contrary intention in the will, the devise will take effect as if the devise or bequest to the issue living at the testator’s death.

It is usually advisable to make an expressed substitutional provision in the will, rather than just rely on the statutory provision taking effect. Doing this will allow for the avoidance difficulty and uncertainty in the will. A failure to provide express instructions in a will, may result in Section 33 being applied, a manner that maybe contrary to the wishes of the testator.

In cases where the testator does not wish for the provisions of Section 33 to apply to their will, then they may include a declaration that it shall not take effect.

‘Section 33 of the Wills Act 1837, (or any modification or re-enactment of them), shall not apply to any gifts made by the will, is a usual provision.

Section 33 of the Wills Act 1837, applies where a testator dies after the 31^st December 1982, and provides that where;

A will contains a devise, or bequest to a child or remoter descendant of the testator;

And

The intended beneficiary dies before the testator leaving issue; and the issue of intended beneficiary are living at the testator’s death.

Then, unless there was a contrary intention in the will, the devise or bequest will take effect, as a devise or bequest to the issue living at the testator’s death.

Section 33 (3), provides that;

Issue taken equal shares, if more than one, any gift or share which their parent would have taken, and so that no issue should take who’s parents is living at the testators death, and so capable of taking. Where a gift to a child of the testator is made subject to an age condition, is not clear whether their issue must meet the same age condition. If the testator wishes any issue who takes by substitution, to meet the same age condition that the gift should state this expressly.

Section 33 (2), deals with class of gifts. It provides that where;

A will contains a devise or bequest to a class of person, consisting of remoter decedents of the testator;

And

A member of the class dies before the testator, leaving issue;

And

The issue of that member are living at the testator’s death, then unless there is a contrary intention in the will, the devise or bequest will take effect, as if the class included the issue of its deceased member living at the testators death.

Section 33 (4) provides that;

A – The legitimacy of any person is to be disregarded;

And

B – Any person conceived before the testator’s death, and born living thereafter, is to be taken as living at the testator’s death.

Section 33 applies only where a gift is made to a child or a remoter descendant of the testator. In all other cases, if the beneficiary pre-deceases the testator, and there is no substitutional gift, then the gift will lapse; it will not pass to their issue.

Exception to the Doctrine of Lapse.