Gift Giving

Christmas is a time of giving. They say it is better to give than receive. Therefore this week I am looking at ways in which gifts in a Will could fail. Having a Will correctly drafted will help. But some are beyond the control of the testator or the Will draftsman.

  1. Incorrect Witnessing

If the witness is not eligible to witness the signing of the Will, then the whole Will could be void. For example, if the witness is a beneficiary or married to a beneficiary.

  1. Divorce

When a couple divorce, gifts to one another via their Will are effectively cancelled. This is because the former spouse is considered to have died before the person writing the Will. Also, the financial element of many divorces often explicitly state, the former spouse is not to benefit from the other’s estate.

  1. Lapse

This is simply where the beneficiary of the gift dies before the person giving the gift under their Will with no direction on whether the gift is to be passed to their heirs.

  1. Uncertainty

Where there is any uncertainty about the subject or terms of a gift, it may fail. For example, an inaccurate description of an asset to be gifted, or whether the gift is free of debt or taxes.

  1. Disclaimer

It is not possible for the person preparing their Will to force a gift onto someone. There is the possibility this will be disclaimed.

  1. Ademption

Where the testator no longer owns the asset to be gifted as at their death, then the gift fails due to abatement.

  1. Unlawful Killing

Unlike the movies, killing a relative to inherit a fortune does not work in real life, at least not since the arrival of Forfeiture Act 1982 which prevents a person benefiting from this crime.

  1. Abatement

Assets may be owned by the Testator at their time of death but their debts and taxes may be so high the asset needs to be sold to repay the debt. Where this occurs, this is known as an abatement.

Summary: Failing Gifts In A Will

Making sure your Will is correctly witnessed is something we can all control. Keeping our Wills up to date should also resolve any issues such as former spouses remaining as beneficiaries, ademption and gifts lapsing due to a person pre-deceasing you. Accurate drafting should avoid problems of uncertainty. Whilst no-one can guarantee your heirs will not try and murder you, at least you can rest in peace knowing they are unlikely to benefit from their wicked deeds.

If you would like to know more about gift-giving under your Will or during your lifetime, please contact us.