Failure of gifts

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.

Gifts that fail because they are unclear

The following are all examples of gifts that will fail:

• The person intended to receive the gift is unclear. If your will states ‘I leave £5,000 to my brother’, but you have more than one brother.
• The gift is unclear. If your will states ‘I leave my car to my sister’ but you have more than one car.
• The person intended to receive the gift dies before you. To avoid gifts failing for this reason you can specify what happens should any of your beneficiaries die before you. For example you can provide that their children are to inherit in their place, or name some other default beneficiary. Alternatively, you can amend your will when they die.
• Joint beneficiaries are unclear. If your will states ‘I leave £5,000 to my children Michael and James’ it isn’t necessarily clear whether it means £5,000 each, or £5,000 split between them.
• The gift is subject to a condition that is impossible or uncertain. For more information on conditions in a will, please see Conditions in a will.

When this happens, the gift either becomes part of the residuary estate, or it is dealt with by the intestacy rules.

Gifts that fail because you no longer own the property

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.

What if my estate isn't large enough to pay all the legacies?

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.