Doctrine of lapse

Question 1

when will a gift lapse?

Answer 1

Unless there is contrary intention in the Will, a gift will lapse if:
o B dies before T; or
o B dies before satisfaction of a contingency

Question 2

what happens if a legacy lapse?

Answer 2

A lapsed legacy will fall into residue, if this fails it will pass on intestacy (unless there is a substitutional B)

Question 3

what happens if a residuary gift lapses?

Answer 3

it passes on intestacy (unless there is a substitutional B)

Question 4

what is the commorientes rule?

Answer 4

if two or more Bs have died in circumstances where is it uncertain as to which died first, it is presumed the oldest died first

NB: this doesn’t apply if the Will contains a survivorship clause

Question 5

what are the exceptions to the doctrine of lapse?

Answer 5

A gift will not lapse if there is a substitutional B or s33 Wills Act applies

Gifts to joint tenants + 1 predeceases T = survivorship operates
 NB: gift will lapse if all JTs die
 Does not apply if Will inc. words of severance i.e. ‘in equal shares’

Gifts to a class of Bs - no lapse unless all members predecease T