The Will of the Testator left 3 pecuniary Legacies before the residue is ascertained. The Residuary Estate was bequeathed after payment of debts/funeral and testamentary expenses upon the following terms:
- A legacy of £5,000 to X
- The remainder of the Residuary Estate to Y
X predeceased the Testator and the Will left no substitutional provisions for the failed legacy of residue. Does the failed legacy of X pass under Intestacy of Testator OR does it pass back to residuary estate for Y ?
Normally a failed legacy of residue passes under Intestacy but would the legacy to X be treated in any other way as a pecuniary legacy.
Generally a failed gift in the body of a will, left absolute to one person, falls into the residuary clause of the Will (if any).
However, if X is a issue of the testator, the Wills Act in your country may have provisions speaking to testator children pre-deceasing testator leaving issue who survive the testator- in which even, may save the gift from lapsing (in that, it would pass to the issue directly or via probate depending on how the child of the testator died (intestate or testator).
Subject to any other wording in the Will I believe you have a partial intestacy
Subject to the point about the Wills Act, as this is expressed as a gift out of residue, and subject to any other wording in the Will, I believe you have a partial intestacy
Yes, you might need to look at section 33 of the Wills Act 1837 but otherwise what you’ve presented reads as though it would simply fall into residue. Your question reads as though perhaps the drafter was intending to prioritise the legacies?