IHTM12084 - Legacies and devises: lapse (England, Wales and Northern Ireland)

Lapse occurs when a testamentary gift fails owing to 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 on intestacy ( IHTM12101).

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

• a testamentary gift to a child or remoter issue of the testator or testatrix ( IHTM12001) will not lapse if the dead beneficiary leaves issue who are alive at the testator’s death (in England & Wales, S33 Wills Act as amended by S19 Administration of Justice Act 1982; 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.