IHTM12084 - Succession: Wills: Legacies and devises: Lapse (England, Wales and Northern Ireland)

Lapse occurs when a gift made in a Will fails because of the death of the legatee or devisee in the testator’s (IHTM12001) lifetime. Where the legacy or devise is anything other than residue, that property will normally fall into residue.

If a gift of residue lapses, the property devolves as it would on intestacy (IHTM12101).

There are exceptions to the rule. The most common are where

• a gift in a Will to a child or remoter issue of the testator or testatrix (IHTM12001) will not lapse if the dead beneficiary leaves issue (children) who are alive at the testator’s death (in England & Wales, the Wills Act/ S33 as amended by the Administration of Justice Act 1982/ S19; in Northern Ireland, article 22 of the Wills and Administration Proceedings (NI) Order 1994). This does not apply where the gift is a life interest.
• the testator or testatrix makes substitutory provisions in the Will. For example a gift to ‘such of my children as are alive at my death’ will clearly benefit surviving children and not the issue of any predeceasing child.