Occasionally, an issue with the wording of the will, or even with the nature of the gift itself, may prevent the gift from being made.
This happens most often when the will is not clear or specific enough about who the gift should go to. But it might also happen if there is a problem with the property being passed.
The following are all examples of gifts that will fail:
When this happens, the gift either becomes part of the residuary estate, or it is dealt with by the intestacy rules.
Another reason for a gift failing is that the property in question is not part of your estate any more. You cannot give away something that you do not own. So if your will says ‘I leave my signed Picasso print to Alison’, but you no longer own the print because you sold it 5 years before your death, then that gift will obviously fail and Alison will receive nothing. This is known as ademption. Because it was a specific item, Alison would not be entitled to a cash equivalent, unless your will specifically states that she is.
This does not just apply to personal possessions. If your will makes a gift of specific property that you do not own when you die, then the gift will fail. However, if your will says ‘the family home’ or ‘my house’, then that could be taken to mean whatever house you own or are living in at the time of your death.
Reviewing a will is very important when you buy or dispose of significant assets, such as property or valuable possessions, so as to avoid the risk of gifts failing and people not receiving the benefit you intended them to receive.
If your estate doesn’t include enough money to pay all of the gifts listed in your will, your beneficiaries instead share your estate in proportion to their original share. For example, if your will states that someone should get £50,000 of a £100,000 estate, but only £50,000 is left, they instead receive £25,000. This is known as abatement. Specific legacies are always paid before any residuary estate, which means that if there is not enough to pay the specific legacies in full, there will be no residuary estate.