A question can arise as to what would happen if a beneficiary under a will dies before the testator?
For example, John a bachelor has left his estate in his will amongst his 3 nephews and nieces, Patrick, Sheila and Jennifer. (Note a gift under a will is known as a bequest). What happens if Sheila dies before John and John has not altered his will to cater for this fact? In this case Sheila’s bequest lapses and the share that Sheila would have got falls into the residue of the estate, which in this case is to Patrick and Jenifer (section 91 of the Succession Act 1965). So Patrick and Jennifer instead of receiving one third of John’s estate will now get one half of his estate each.
When drafting a will it is important to be aware of such a situation and decide how to deal with it. John, in this case, if he wanted, had certain drafting options to avoid lapse. He could have provided the following in his will:-
- He could provide that lapse does not apply and that the share that was due to Sheila would pass to Sheila’s children on her death;
- Alternatively, John could have stipulated that Sheila should be treated as having survived John and then died and that Sheila’s share shall pass in accordance to Sheila’s estate (so in accordance with her wishes in her will if she has made one).
These clauses are sometimes referred to as “gift over” clauses.
There is an important exception to the general rule of lapse and that applies in a parent and child situation. So in a parent and child situation, if a parent dies and leaves a bequest to a child and the child has pre-deceased the parent (with children surviving them) then in that case the bequest does not lapse.
So, for example, Mary has left her estate to her three children Tom, Frank and Alan but Frank predeceases his mother Mary. If Frank had no children, then, his bequest lapses. However, if Frank has children (and his children are alive when Mary dies), then s. 98 of the Succession Act intervenes. In this case Frank’s share does not lapse but forms part of Frank’s estate. It is important to note that Frank’s share does not pass to his children, but rather, that Franks bequest passes in accordance with his estate (so if he has a will, in accordance with the terms of his will). Mary would have drafting options available to her when drawing up her will and her solicitor could advise her on how to deal with the situation of lapse with respect to any of her children.
Dealing with lapse is an important and complex part of will drafting and professional assistance should always be taken in drafting a will. For more information please contact Colm Kelly at firstname.lastname@example.org