I am dealing with an estate where the homemade Will appoints A as executor and then leaves the residuary estate “100% to A but if they die before me to B”.
Unfortunately, A’s spouse was one of the 2 witnesses to the Will. I understand this does not invalidate the Will but the gift to A fails. My question is , does the residuary estate go to B ( but A has not died before the testator) or does it pass under the intestacy rules.
A is the only child of the testator and is the only beneficiary under the intestacy rules. B is the grandchild of the testator and child of A. B is a minor so would not be able to enter into a Deed of Variation.
I would appreciate comments.
Williams Mortimer & Sunnocks (2013 Edition) states @ 73-32:
When an attesting witness is deprived of his interest under the will the interest may fall into residue or pass to the next person entitled on the basis of acceleration or there may be a partial intestacy.
Th same applies if the wife of the beneficiary is the witness.
In the circumstances in question, it seems to me that the gift of residue to A fails (is “void” using the language of s.15) and, therefore passes to B, subject to any contingency imposed by the will.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I have not looked at Williams but my analysis, based on first principles, is as follows. This is not a case of successive provisions in the will - such as a devise to A for life, remainder to B ; it is a case of a conditional gift - If A pre-deceases T, then B inherits absolutely ; if not then A inherits absolutely. Either A dies before T or A does not, and in determining the answer to this factual question any personal defect in A’s own entitlement to inherit is immaterial. As there can never be any possibility of B inheriting in succession to A it is difficult to see how any acceleration can arise.
Clifford Payton
Aloha Court Chambers
I suspect the authors of Williams Mortimer and Sunnocks may have relied upons.33A Wills Act 1837, as inserted by s.2 Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011, in forming the view that entitlement to the gift would be accelerated (although the text does not specifically identify a link between those provisions).
I suppose the essential question is whether “void” in 1837 is perceived as meaning the same as “forfeit” in 2011 et seq.?
I note one of the Editors of WMS occasionally posts on the Forum and wonder if they might be willing to contribute to this discussion?
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I share Paul’s doubt about the link to the 2011 Act. Given that “the forfeiture rule” is very narrowly defined in the Forfeiture Act 1982 as " the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing" I do not see how it can affect this situation.
Clifford Payton
Thank you for your learned replies!
The Will states “if they {i.e. A} dies before me to B” . A has not predeceased so, to be clear, in my situation, does that mean B cannot benefit so there is an intestacy, in which case A would benefit as A is the only person entitled on intestacy?
I agree with your interpretation. The gift to A fails under the will but the substitution of B cannot kick in as A has not predeceased the testator. therefore it is a partial intestacy situation and A can apply for a Grant of Letters of Administration with the will annexed on the basis that A is entitled under the intestacy rules: there is a valid will but it fails to dispose of the residuary estate.