Property gifted twice under a Will

Morning All

I have come across a Will of a deceased where they have gifted the same property twice in two consecutive clauses to two different individuals, each on a life interest. On either individual’s death a different event takes place as to where that property should go next and neither surviving life tenants is named as beneficiary on the other’s death.

One of the life tenants would not have the capacity to disclaim or vary.

I suppose my starting question is whether there is anything in law that says the gift of an asset given first or last under a Will takes priority over the later/earlier clause?

Thanks in advance


I suggest the starting point might be to ask the will drafter for their file so that you can understand what the testator intended.

It may be the testator changed their mind as to who was to benefit, but the drafted omitted to delete the initial gift.

If the drafter had complied with their instructions, then how do they explain their failure to note the problem? Might the “N” word apply?

If the enquiries do not resolve the question, my recollection is that where a will contains a gift of the same asset more than once, the first gift is effective and the subsequent gift(s) fail on the basis that the asset having already been given away is no longer available to be given away again. If the value of the asset in question is significant, it may be appropriate to obtain the opinion of Chancery counsel to protect the executors.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Paul is of course absolutely right about the first part - these inconsistent gifts of the same property create an ambiguity which one should attempt to resolve by reference to evidence of the testator’s true intention, as shown perhaps by the will drafter’s file, and one would think that a drafter who included two inconsistent provisions in the same will very likely was negligent, and might have to bear the costs of resolving the question.
If however there is no good evidence of the testator’s true intention, such as where it is a home-made will, one might have to resort to the old rules of construction.
Paul’s recollection is right as regards gifts of residue - the first gift disposes of the residue so there is nothing left for the later gift to bite on. But not in relation to specific bequests or devises. There, the later gift of the same asset is treated as revoking the earlier gift. See Theobald on Wills (19th ed) at para 7-036 (contrasting 7-039 on residuary gifts).
I would of course endorse Paul’s advise to get the opinion of counsel!

Alexander Learmonth KC
New Square Chambers

Thank you both for taking the time to reply and for citing legal references which really help. I have requested the Will drafter provides an interpretation - all in all there were 6 potential trusts under the Will and I could only see 1 might work effectively! I have also suggested counsel’s opinion at their cost so it is reassuring to see you both agree.