IHTM12085 - Succession: Wills: Legacies and devises: Vesting (Scotland)

This has to be considered when a gift in a Will may seem to fail because of the death of the legatee in the testator’s (IHTM12001) lifetime, or at any time before the bequest to that person takes effect and the property involved becomes theirs to dispose of absolutely, for example during the currency of a liferent (IHTM16071).

Where a bequest is anything other than residue and fails, it will normally fall into residue.

When a bequest of residue fails, the property devolves under intestacy (IHTM12101).

The basic point is what the testator’s intentions were and what the legal rules which apply in such situations are. Any case where this point arises should be referred to Technical.

The Succession (Scotland) Act 2016 provides new rules for Wills signed after 1 November 2016 where a legacy is left to a direct descendant (i.e. a child, grandchild, great-grandchild, etc.). If the descendant dies before the testator or otherwise does not live long enough to inherit, then the direct descendants of that beneficiary will inherit in place of the predeceasing beneficiary, unless the Will expressly provides or implies otherwise.