Learning Outcomes
This article explains how and why gifts in wills fail for uncertainty, beneficiary as witness, and divorce or dissolution, including:
- Distinction between uncertainty of subject matter and uncertainty of objects (beneficiaries), judicial preference for construing ambiguous provisions, and when a court will finally declare a testamentary gift void.
- Use of extrinsic evidence and rectification applications to rescue apparently uncertain gifts, together with the especially generous approach to uncertain charitable gifts and the operation of cy-près schemes.
- Statutory witness-disqualification rule for beneficiaries (and their spouses/civil partners), its practical consequences for legacies and appointments, and recognised exam‑relevant workarounds such as additional witnesses and confirmatory codicils.
- Effect of divorce or dissolution on gifts and appointments in favour of a former spouse or civil partner, and the operation of substitutional gifts where that person is treated as having predeceased.
- Devolution of failed gifts into residue or, if residue itself fails, under the intestacy rules, including interaction with class gifts, residuary structures, and anti‑lapse provisions that do not apply to witness-disqualification.
- Techniques for reading problem questions systematically so as to spot potential failures of gifts, distinguish them from ademption and lapse, and determine precisely who takes the property instead.
SQE1 Syllabus
For SQE1, you are required to understand when gifts fail in wills due to uncertainty, a beneficiary acting as a witness, and divorce or dissolution, with a focus on the following syllabus points:
- 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
- how courts construe ambiguous gifts, limited powers of rectification, and the special approach to uncertain charitable gifts
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.
Courts attempt to uphold wills. Before declaring a gift void for uncertainty they will:
- construe the instrument using its natural and ordinary meaning in context, taking account of surrounding circumstances
- admit extrinsic evidence in limited circumstances (for example where words are meaningless, ambiguous on their face or in light of the facts), to assist construction
- consider rectification where the instrument fails to carry out the testator’s intentions due to a clerical error or a failure by the drafter to understand instructions, if an application is brought in time
For property, a will ordinarily “speaks from death” (so descriptions are applied to the estate as it exists at death), which can help avoid uncertainty of subject matter. By contrast, as regards people, descriptions are generally applied as at the date of execution unless the will shows a contrary intention. For example, a gift “to the eldest son of Jacob” is read at the date the will was executed; if that person predeceases the testator, the gift does not automatically pass to a younger son unless a substitution is provided.
Charitable dispositions receive especially favourable treatment. Where it is clear the testator intended to benefit charity, but the named body cannot be identified with certainty, the court may select the appropriate charity or settle a scheme so that the gift is applied cy-près to a similar charitable purpose. In such cases, the gift need not fail for uncertainty.
Uncertainty is distinct from other failure doctrines such as ademption or lapse. However, the practical effect is the same: if a gift fails for uncertainty, that part of the estate usually falls into residue. If the failed gift is itself a residuary gift, a partial intestacy results.
Common pitfalls include vague descriptors such as “a generous sum,” “my best friends,” or “one of my cars,” all of which risk being too imprecise. By contrast, some descriptors are workable because they provide an objective test: “my employees at my death” or “my brothers and sisters of the whole blood” are ascertainable classes.
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.
Further illustrations:
- “I give my paintings” is likely certain if the testator owns a defined collection of paintings at death; “I give a painting” is likely uncertain unless the will provides a mechanism for selection.
- “£10,000 to the cancer charity at which I volunteered” may be saved if extrinsic evidence shows which registered charity is meant; if the intention is exclusively charitable but the identity remains unclear, a court can direct which charity shall benefit.
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 appointment of that person as executor is not affected; an executor may witness and still act, but cannot take a gift if section 15 applies.
- The rule does not apply to creditors or to persons merely receiving repayment of a debt under the will.
- Spouse/civil partner status is assessed at the time of witnessing. If the couple are engaged when the will is executed, the gift is not void under section 15 even if they later marry.
Practical workarounds:
- If three people witness the will and one is a beneficiary (or their spouse/civil partner), the will remains valid and the gift to that beneficiary will stand, because the will can be proved ignoring the disqualified witness’s signature.
- A codicil can sometimes cure the problem: if the original will was witnessed by a beneficiary but a later codicil (properly attested by independent witnesses) confirms or republishes the gift without the disqualified witness, the beneficiary may take under the will as confirmed by the codicil.
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 of the Wills Act 1837 (divorce/annulment of marriage) and section 18C (dissolution/annulment of a civil partnership). The effect is:
- Any gift to the former spouse or civil partner is revoked (they are treated as having predeceased the testator).
- Any appointment of the former spouse or civil partner as executor, trustee, or guardian 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 because the former spouse/civil partner is deemed to have predeceased.
- The rule is triggered only by a decree of divorce/dissolution/annulment made by a court. Mere separation or a decree of judicial separation does not engage the section.
If the will does not contain a substitutional gift, the property passes into residue or, if part of residue, under the intestacy rules. Note that these provisions affect only dispositions by will; property passing outside the will (such as joint property passing by survivorship, pension scheme death benefits at trustees’ discretion, or life policies written in trust) is unaffected by sections 18A/18C and must be considered separately.
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.
Several points of interaction are worth stressing:
- If a failed pecuniary or specific legacy falls into residue, check whether residue is wholly or partly given to the same person; that may reduce the practical effect of the failure.
- Where a spouse/civil partner is the sole residuary beneficiary and divorce/dissolution has intervened with no substitution, the residuary gift is revoked and a partial intestacy occurs; the estate is then distributed under the intestacy rules.
- A failure under section 15 (beneficiary as witness) is not a lapse for want of survivorship; it is a statutory voiding of the gift. Anti-lapse provisions for issue (under section 33 Wills Act 1837) do not “rescue” a gift voided by the witness rule.
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. Also remember that separation alone (without a decree) does not revoke gifts or appointments.
Worked Example 1.4
In April, a testatrix makes a will leaving £50,000 to her fiancé, Liam. The will is witnessed by Liam and by an unrelated neighbour. The couple marry in September. The testatrix dies in November without changing her will.
Answer:
The gift to Liam is void under section 15 because he acted as a witness when he was only a fiancé; however, the relevant time for section 15 is the moment of attestation. Being a fiancé does not make the rule inapplicable: it is witnessing by a beneficiary themselves that voids their gift, regardless of marital status. The will is still valid and the £50,000 falls into residue. If the will had an additional independent witness (so that the will could be proved without Liam’s signature), the gift would have stood.
Worked Example 1.5
A clause reads: “£20,000 to be applied to cancer research at a suitable charity.” No particular charity is named, and the testator supported several cancer charities in life.
Answer:
This is an exclusively charitable intent. The court can direct which charity should receive the legacy or settle a scheme applying the gift cy-près. The gift need not fail for uncertainty; the sum will not fall into residue merely because no single charity is specified.
Worked Example 1.6
A will (made during marriage) leaves “all the rest of my estate” to the testator’s wife. They later divorce, and the testator dies without further will or codicil and without any substitution in favour of others.
Answer:
The residuary gift is revoked by section 18A. With no substitution, the residue is undisposed of and there is a partial intestacy; the rules of intestacy govern who takes the residuary estate.
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.
- Courts prefer construction to outright failure: they will consider surrounding circumstances, admit limited extrinsic evidence, and, in narrow cases, rectification; uncertain charitable gifts may be saved by cy-près.
- A beneficiary (or their spouse/civil partner) who witnesses a will cannot take a gift under that will; the will remains valid and appointments as executor are unaffected.
- Divorce or dissolution revokes gifts and appointments in favour of a former spouse or civil partner unless the will states otherwise; the former spouse/civil partner is treated as having predeceased.
- When a gift fails, the property usually falls into residue or, if part of residue, passes by intestacy; substitutional gifts may avert intestacy where the failed beneficiary is deemed to have predeceased.
Key Terms and Concepts
- uncertainty (in wills)
- beneficiary as witness
- divorce (effect on wills)