Lapse / Failed Gift
When a gift in a will fails because the beneficiary dies before the testator. The gift falls into the residuary estate unless the will provides otherwise.
A lapse occurs when a gift in a will fails, typically because the intended beneficiary dies before the person who made the will.
When Gifts Lapse
- Beneficiary dies before the testator
- Beneficiary witnesses the will
- Specific item no longer exists (ademption)
- Charity beneficiary no longer exists
- Gift is impossible or illegal
What Happens to Lapsed Gifts
Generally, lapsed gifts fall into the residuary estate and pass to residuary beneficiaries. However:
- If the residuary gift lapses, intestacy rules apply to that portion
- If the beneficiary was the testator's child or grandchild, their descendants may inherit instead (s.33 substitution)
- The will may specify alternative beneficiaries
Preventing Lapse
- Name alternative beneficiaries ("to John, or if he dies before me, to his children")
- Use per stirpes distribution
- Review and update your will regularly
Common questions
Does a gift lapse if the beneficiary dies after the testator?
No. If they survive you even briefly, the gift passes to their estate. Survival clauses can change this.
What is a substitutional gift?
An alternative gift that takes effect if the first fails - e.g., "to my brother, or if he predeceases me, to his children."
Can a lapsed gift go to the beneficiary's estate?
No. A lapsed gift never vests in the beneficiary. It falls into the residuary estate or intestacy.
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