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.