Failure of Gifts

There are some circumstances where, despite the proper formalities of execution of a Will being observed, a Will (or a gift within a Will) can still fail.

Will Revoked by Marriage or Civil Partnership

If a single person makes a Will and subsequently marries or enters into a Civil Partnership, the marriage or Civil Partnership causes the Will to become immediately void unless it contains a clause that stipulates the Will is made in contemplation of marriage or Civil Partnership.  

If a Will is made in contemplation of marriage or Civil Partnership it is important to ensure that the relevant clause is drafted with specific information regarding who the intended spouse or civil partner is. Otherwise, in the absence of a properly drafted clause, it is imperative that following the marriage or formation of the Civil Partnership, any Will is updated to ensure that the person’s  wishes are followed.

If a Will is rendered void by marriage or Civil Partnership, the Intestacy Rules will apply to the distribution of the Estate, which may result in unintended consequences.  This may be particularly important where the Deceased has children from a previous relationship/marriage as the Intestacy Rules provide a sizable provision in favour of a spouse.  This can give rise to circumstances where a spouse from a very short marriage inherits a significant part of the estate instead of the Deceased’s children, which may be contrary to the Deceased’s wishes. In such circumstances, whilst the children will be unable to challenge the fact the Will is void, they may be able to bring a claim against the Estate under the Inheritance (Provision for Family and Dependants) Act 1975, if the Intestacy Rules fail to provide sufficient funds to meet their maintenance needs.

Predatory Marriages

Given that a Will is often automatically void following a marriage, this may lead to exploitation in the form of  predatory marriages.

A predator who exploits a vulnerable individual to enter into a marriage stands to make a significant financial gain under the Intestacy Rules as the spouse will be entitled to receive a significant part of the Deceased’s Estate.  Despite this being a criminal offence, if the vulnerable individual lacks the mental capacity to marry the marriage is “voidable” under the Nullity of Marriage Act 1971 and Section 12 (c) Matrimonial Causes Act 1973 but is not “null and void”. This means the marriage will remain valid until it is annulled and will not be set aside as if the marriage never happened but simply annulled from the date of the annulment onwards. The inheritance consequences are that the marriage will have automatically revoked the earlier Will even if the predatory marriage is later successfully annulled.

If the predatory marriage is identified during the lifetime of the vulnerable individual, steps can be taken to (1) annul the marriage (2) to apply to the court of protection for a statutory willif the victim lacks capacity to make a new willand (3)  to explore whether any assets have been transferred or put out of reach of an estate and to explore action to undo such transactions.

If the predatory marriage has not yet occurred, then it is possible to report concerns to social services and the marriage registrar (by raising a marriage caveat) to place them on notice of concerns. It is therefore imperative that swift action is taken to seek specialist legal advice as soon as financial abuse is suspected or concerns are held that a predatory marriage may have taken place or may be about to take place.

However, often predatory marriages take place in secret and without knowledge of family and friends and do not come to light until after the victim has died. It is not currently possible to take steps after the death of a victim to undo the effects of the marriage on a previous Will.  This leaves the only recourse being a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the Intestacy Rules have failed to make reasonable financial provision for the claimant. Further, the intended claimant can only bring a claim if they fall into one of the eligible categories of individuals permitted to bring a claim.

This area of the law is being reviewed and new legislation may change the law.  

Effect of a Divorce on a Will

A person considering divorcing their spouse should consider making a new Will. In addition, they should consider whether any property is held jointly with their spouse as Joint Tenants as this will mean that survivorship rights apply. The effect of this is that your share of the property will automatically pass to the co-owner (your spouse) upon death. It is therefore important to take advice on steps to amend the joint ownership so as to disapply the survivorship rules.

Further if you die whilst in the process of getting divorced, and there is a Will naming your spouse as beneficiary, they will still be entitled to their inheritance unless a Decree Absolute (Final Order) has been issued prior to your death. Likewise, if you do not have a Will in place, your spouse will inherit under the Intestacy Rules despite you being in the process of divorcing.

Once a final divorce order is issued, unless there is anything in your Will to the contrary, your ex-spouse will be treated as having pre-deceased you. They will not be entitled to benefit from your estate and will not be entitled to take up any appointment as an Executor. 

If you still want your ex-spouse to inherit from your estate, despite the divorce, it would be necessary to sign a new Will.

What happens if a Gift in a Will fails?

In some circumstances, a gift in a Will can fail, if for example:

• the beneficiary of the gift or their spouse/civil partner witnesses the Will; or
• a beneficiary has pre-deceased the testator; or
• the gift is no longer identifiable or in the Deceased’s possession.

Specific Gifts of Property

A Will can make specific gifts of identified property such as a specific car, money in a specific bank account, specific shares or a property.  This can be problematic if at the time the Will was prepared the Testator (the person making their Will) held those assets, but that changed before death e.g. a sale.

It is not uncommon for property named in a Will to no longer be in the possession of the Testator at the date of their death. For example, they may have sold their home or car and purchased a new car or converted their shares to cash.

If this is the case, the gift is considered to have “adeemed”, and the gift fails, unless the Will specified what should happen if an asset is sold. For example a gift of a property in a Will may be defined as the Testator’s home at 1 A Street, A Town or such property as is their main residence at date of death. The beneficiary is not entitled to automatically inherit any property that has been purchased in replacement (for example the new house ) unless it can be shown that the gift had changed in name or form alone and remained substantially the same thing. This requires careful consideration, for example where a more expensive property has been purchased with the sale proceeds and other funds. If the funds have been mixed with other funds then the gift is unlikely to be assessed to have changed in name or form alone, and the replacement property will fall within the residue of the Estate. It will therefore either be distributed in accordance with the terms of the residuary provisions of the Will or, if there is no residue clause in the Will, a partial intestacy situation will arise and the adeemed gift will pass in accordance with the Intestacy Rules.

Specific gifts in a Will should be carefully planned and documented with attention given to what should happen if the asset is sold.