Learning Outcomes
After reading this article, you will be able to identify and explain the main legal reasons why gifts in wills may fail due to uncertainty, the effect of a beneficiary acting as a witness, and the impact of divorce or dissolution on testamentary gifts. You will be able to apply these principles to SQE1-style scenarios and distinguish between valid and invalid gifts in a will.
SQE1 Syllabus
For SQE1, you are required to understand the circumstances in which gifts in wills may fail and the legal consequences. In your revision, focus on:
- the rules on uncertainty in testamentary gifts and when a gift will fail for lack of certainty
- the statutory consequences when a beneficiary (or their spouse/civil partner) witnesses a will
- the effect of divorce or dissolution of a civil partnership on gifts to a former spouse or civil partner and on their appointment as executor or trustee
- how these failures interact with the rest of the will and the intestacy rules
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What happens to a gift in a will if the subject matter or the beneficiary is not described with sufficient certainty?
- What is the effect if a beneficiary witnesses the execution of a will?
- How does divorce or dissolution of a civil partnership affect gifts to a former spouse or civil partner in a will?
- If a gift to a beneficiary fails for any of these reasons, what happens to that part of the estate?
Introduction
Gifts in wills sometimes fail, meaning the intended beneficiary does not receive the property. For SQE1, you must know the main reasons for such failures: uncertainty in the will, a beneficiary acting as a witness, and the effect of divorce or dissolution. Understanding these rules is essential for advising on the validity of testamentary gifts and for answering SQE1 multiple-choice questions.
Failure of Gifts Due to Uncertainty
A gift in a will must be sufficiently certain for the court to give effect to it. If the subject matter of the gift or the identity of the beneficiary is unclear, the gift will fail for uncertainty.
Key Term: uncertainty (in wills) Uncertainty means that the will does not clearly identify what is being given or to whom. If the court cannot resolve the ambiguity, the gift is void and will not take effect.
There are two main types of uncertainty:
- Uncertainty of subject matter: The property being gifted is not described clearly enough to identify it.
- Uncertainty of object: The beneficiary is not described clearly enough to identify who should receive the gift.
If a gift fails for uncertainty, that part of the estate usually falls into residue. If the failed gift is itself a residuary gift, it will pass under the intestacy rules.
Worked Example 1.1
A will states, "I leave a generous sum to my best friends." The will does not name the friends or specify the amount.
Answer: This gift is void for uncertainty. The court cannot determine who the "best friends" are or what amount is "generous." The sum will fall into residue or, if part of residue, pass by intestacy.
Failure of Gifts: Beneficiary as Witness
A beneficiary (or their spouse/civil partner) who witnesses the execution of a will cannot take any gift under that will. This is a strict statutory rule.
Key Term: beneficiary as witness If a beneficiary, or their spouse/civil partner, acts as a witness to a will, any gift to that person is void. The rest of the will remains valid.
This rule is found in section 15 of the Wills Act 1837. It applies regardless of whether the beneficiary knew they were witnessing a will or whether the testator intended them to benefit.
- The beneficiary can still act as a witness, and the will is validly executed.
- Only the gift to the beneficiary (or their spouse/civil partner) is void.
- The rule does not apply to creditors or executors who are not beneficiaries.
Worked Example 1.2
A will leaves £10,000 to Sam. Sam and a neighbour witness the will. Sam is not related to the testator.
Answer: The gift to Sam is void because he acted as a witness. The rest of the will is valid. The £10,000 falls into residue or, if part of residue, passes under the intestacy rules.
Failure of Gifts: Divorce or Dissolution
If a testator divorces or dissolves a civil partnership after making a will, the law treats the former spouse or civil partner as having died before the testator for the purposes of the will, unless the will states otherwise.
Key Term: divorce (effect on wills) On divorce or dissolution, any gift to a former spouse or civil partner, or their appointment as executor or trustee, is revoked unless the will expressly provides otherwise.
This rule is found in section 18A (marriage) and section 18C (civil partnership) of the Wills Act 1837. The effect is:
- Any gift to the former spouse or civil partner is revoked.
- Any appointment of the former spouse or civil partner as executor or trustee is revoked.
- The rest of the will remains valid.
- If there is a substitutional gift (e.g., "to my spouse, but if they predecease me, to my sister"), the substitutional gift takes effect.
If the will does not contain a substitutional gift, the property passes into residue or, if part of residue, under the intestacy rules.
Worked Example 1.3
A will leaves the entire estate to the testator's spouse, with a substitutional gift to the testator's brother if the spouse predeceases. The couple divorce, and the testator dies without changing the will.
Answer: The gift to the former spouse is revoked by law. The brother takes the estate under the substitutional gift.
What Happens When a Gift Fails?
When a gift fails for any of these reasons, the property forms part of the residue of the estate. If the failed gift is itself a residuary gift, it passes under the intestacy rules. The rest of the will remains valid.
Exam Warning
If a beneficiary witnesses a will, only their gift is void. The will is still valid, and other gifts are unaffected. Do not confuse this with invalid execution, which would void the entire will.
Revision Tip
Always check for substitutional gifts in the will. If a gift to a spouse or civil partner is revoked by divorce or dissolution, a substitutional gift may save the property from passing by intestacy.
Key Point Checklist
This article has covered the following key knowledge points:
- Gifts in wills can fail for uncertainty if the property or beneficiary is not clearly identified.
- A beneficiary (or their spouse/civil partner) who witnesses a will cannot take a gift under that will.
- Divorce or dissolution revokes gifts and appointments in favour of a former spouse or civil partner unless the will states otherwise.
- When a gift fails, the property usually falls into residue or, if part of residue, passes by intestacy.
- The rest of the will remains valid even if a gift fails for these reasons.
Key Terms and Concepts
- uncertainty (in wills)
- beneficiary as witness
- divorce (effect on wills)
