Residuary beneficiary spouse has witnessed a will

Trusts Discussion
1

I have been asked to deal with a home-made will which left reside to “such of my two children as shall survive me in equal shares”.

The will was witnessed by the spouse of one of the two children. So the gift fails.

Is there a partial intestacy (50% of the residue), or does the other child take everything? I am sure the two beneficiaries will do the right thing by each other, but am not certain of the legal position. Thank you!

2

The surviving child’s valid share remains effective, but the failed half-share of the residue is not automatically redistributed to the other residuary beneficiary. Instead, that half-share passes on intestacy, creating a partial intestacy.

So, the likely result is:

  • Child A (whose gift is not void) takes 50% of the residue under the will.
  • Child B’s 50% share is void because of the witnessing rule.
  • That 50% falls into partial intestacy and is distributed under the intestacy rules.

A court could potentially construe the surviving child might take the whole residue. Whether that construction is available depends on the exact wording of the will.

3

Thank you, Francesca… ..another reminder not to make a home-made will

1 Like