Usually, if a beneficiary passes away before the will-maker, the gift to the beneficiary lapses (ie is null and void). There are two exceptions:
- If the beneficiary was the will-maker’s child, and the beneficiary has surviving children, the deceased’s share passes to those children.
- If the will says otherwise (eg “to John, but if he predeceases me, then to Carol”), the terms of the will apply. This is called a gift over clause.
If you were left a specific item of property by the deceased in his or her will, but the deceased had already sold or given away that property during his or her lifetime, then the gift will fail (known as ademption). Usually you are not entitled to receive the value of the gift or any substitute gift.
If you were gifted a specific item of property in the will and the deceased owned that property at his or her death but it has since been sold or otherwise disposed of by the executor, you likely have a claim to the proceeds from the sale of the property. You may also have a claim against the executor personally for breach of trust.
If there are insufficient assets in the estate after the payment of expenses and debts to satisfy all gifts that the executor has made, then some of the beneficiaries must go short or receive a smaller legacy. This reduction is called abatement.
The order in which gifts abate depends on the type of gift that has been made. Residuary legacies abate first, followed by general legacies, then specific legacies.
The rules of abatement are complex. It is worth getting legal advice if an issue of abatement arises. If an executor were to get it wrong, they could be personally liable to the beneficiaries to make up the difference.
If the terms of a will are unclear, an application can be made to have the High Court interpret the will.
When interpreting the will, the Court can use external evidence to determine the meaning of the clause. External evidence means any evidence other than the wording of the will itself. Such evidence can include file notes made by the solicitor at the time that the will was made, other notes or statements made by the deceased as to what he or she intended the passage in the will to mean, or anything else that is relevant and helps shed light on the wording of the clause.
Only the Court can interpret a will in this way. If a will is ambiguous, the executor does not have the power to determine what the will means. An application should be made to the Court.
However, where all parties agree on the interpretation that should be adopted, they could enter into a deed of family arrangement to avoid the cost to the estate of having to make an application to the Court. Read more about deeds of family arrangement below.
Even if the original will is lost or destroyed, it may still be possible to seek probate of the will, provided there is adequate evidence of its contents. This can be done by submitting a copy of the will or reconstructing it from people’s recollections.
This is a complex application and legal advice will be required. If you are concerned that someone may have destroyed a will without the will-maker’s consent, you should consult a lawyer as soon as possible.
The executor of an estate is usually required to take reasonable steps to recover all debts owed to the estate.
It is a breach of an executor’s duties not to attempt to recover a debt that is due to the estate, unless the executor has reasonable grounds to believe that making such attempts would be either a waste of time or uneconomical.
If an executor intends not to take steps to recover a debt owed to the estate, they would be well advised to seek the consent of the beneficiaries to that course before doing so.
A deed of family arrangement is an agreement by some or all of the beneficiaries of an estate to divide the property that has been left to them under a will in a way that is different to that provided for under the terms of the will. A deed of family arrangement is typically entered into as a form of settlement agreement where a person has made a claim against the estate.
If any of beneficiaries of the will are under the age of 18, the Court may need to appoint someone as a litigation guardian to act for the minor beneficiaries. Alternatively, the Court can be asked to approve the deed before it is signed.