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What happens if a gift in my Will fails?

What happens if a gift in my Will fails?

When we make a Will, we often think that our wishes will be carried out exactly as we expect but life is rarely straightforward and there can be circumstances where gift in a Will can fail.

So, before you make your Will it is a good idea to think about the potential circumstances where your gifts could not work out the way you intended.

No longer owning the gift

This is a pretty common occurrence (called the ‘rule of ademption’) and can indeed cause a Will clause to fail

For example; let’s imagine the testator (the person giving the gift) piece of jewellery that they wished to pass to one of their children but between making the Will and their death they lose the jewellery.

In this case, the gift would fail.

A gift is promised to someone else.

Called ‘proprietary estoppel’ this is where someone is promised a particular gift during the lifetime of the testator but is then subsequently Willed to another party.

For example, imagine that a man had bought a classic car which his son restores on the promise of it being left to him when his father passes on, but the father then gifts the car to a charity.

In this case, the son could claim proprietary estoppel to establish fairness but he would need to firmly establish that the gift was genuinely promised to him.

The rule of satisfaction

Sometimes people will leave an amount in a Will that is designed to pay off a debt of some kind.

However, if the debt has already been paid off then the beneficiary will receive two amounts when the idea was that they would only receive one.

Alternatively, where a Will names one person as having two gifts of exactly the same amount of money it could be argued that the intention was for them to only receive the money once.

What we have certainly seen in the UK in recent year is parents making substantial gifts to their children to aid house purchase for instance.

If we suppose that a person with two children originally Willed £30,000 each but then subsequently gave only one of the children a lifetime gift of £20,000 as a house deposit then we could say that this was part of the original intention of the Will.

In all of these cases, the rule of satisfaction could be said to apply however it is really important to remember that life is rarely so clear cut and often cases revolve around someone trying to decipher the original intention of the person making the Will and then applying a settlement to suit.

Keeping your Will up to date

In all of these examples, we can see that actually the issue is more that the Will hasn’t been kept up to date with changing circumstances.

We’d suggest that at a minimum, Wills are comprehensively reviewed at least every five years but it is important that when any major change occurs that a review takes place.

One of the main benefits of making your Will with Smart Will is that you get free updates for life included in the price.

Add to this the user-friendly interface then it makes sense to make your online Will using Smart Will and then regularly update so that your Will gifts don’t fail.

Download Smart Will from your App store today. 

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