Lapse, disclaimer, forfeiture (Failure of gifts)- FS

Question 1

What is the legal consequence when a beneficiary under a will predeceases the testator or fails to meet a survivorship clause?

Answer 1

The gift lapses and typically falls into the residuary estate, unless the will includes a substitutional gift allowing another beneficiary to inherit in place of the original one.

Question 2

How does section 184 of the Law of Property Act 1925 (the commorientes rule) resolve cases of uncertain order of death between a testator and beneficiary?

Answer 2

The rule presumes that the elder person died first when the sequence of deaths cannot be determined, which can affect whether a gift passes to the intended beneficiary’s estate or fails.

Question 3

What is a survivorship clause in a will, and what is the effect if it is not satisfied?

Answer 3

A survivorship clause requires the beneficiary to survive the testator by a set period (commonly 28 days). Failure to meet this requirement results in the gift failing and passing into the residuary estate unless otherwise specified.

Question 4

What determines whether a joint gift lapses if one of the joint beneficiaries dies before the testator?

Answer 4

If a gift is made jointly (without words of severance), it does not lapse upon one beneficiary’s death—the surviving joint owner takes the whole. However, if the gift uses words like “in equal shares,” then the deceased’s share lapses into the residuary estate.

Question 5

How does section 33 of the Wills Act 1837 operate in relation to gifts made to the testator’s children who die before the testator?

Answer 5

Section 33 automatically substitutes the deceased child’s own children (the testator’s grandchildren) to inherit the gift in equal shares, even if the will does not expressly make such a substitution.

Question 6

Under what circumstances can a beneficiary disclaim a testamentary gift, and when is such a disclaimer not valid?

Answer 6

A beneficiary can disclaim a gift, causing it to fall into the residuary estate. However, if the beneficiary has already accepted or received benefit from the gift (e.g., income), they cannot disclaim it.

Question 7

What is the forfeiture rule, and how does it affect testamentary gifts?

Answer 7

The forfeiture rule prevents a person who unlawfully kills the testator from inheriting under the will. The killer is treated as having predeceased the testator, and the gift fails unless there is a substitutional gift.

Question 8

What are the seven main reasons for the failure of a testamentary gift, as outlined in the lesson?

Answer 8

A gift may fail due to:
(1) uncertainty of subject matter or beneficiary;
(2) beneficiary witnessing the will;
(3) beneficiary being a former spouse;
(4) redemption (testator no longer owns the subject matter);
(5) lapse (beneficiary dies first);
(6) disclaimer by the beneficiary; and (7) forfeiture due to unlawful killing of the testator.