TSEM6060 | Legal background to trusts and estates: bequests - lapse

Legacies, as indeed all gifts in wills, are subject to the doctrine of lapse. In general terms this means that in the event of the death of the legatee or devisee (a beneficiary of real property) during the testator’s lifetime, a testamentary gift will fail. The rule is that a devisee or legatee must survive the testator in order that he or his estate may have the benefit of the gift.

But an exception to this rule is found in Section 33 of the Wills Act 1837, as amended by Section 19 Administration of Justice Act 1982. This provides that a gift to children or other issue of the testator does not lapse if they predecease him but themselves leave issue living at the death of the testator. In such circumstances, the gift takes effect (subject to any contrary intention expressed in the will) as a bequest to that issue living at the testator’s death in equal shares per stirpes. Prior to the passing of the Administration of Justice Act 1982, Section 33 applied in similar circumstances but the gift fell into the estate of the predeceasing child or other issue and thus was dealt with in accordance with such predeceasing person’s will or intestacy. Section 33 does not apply if the gift to the child or other issue is contingent and he dies before the contingency occurs.