Sometimes, despite your best efforts to prepare for the worst-case scenario, part of your Will may fail.  This does not mean that the whole Will has failed.  Generally, the law and the Courts want to ensure that your wishes on your death are upheld.

Below are some common scenarios.  

The executor named in your Will has passed away

If all the executors named in the Will have passed away then the beneficiaries of the Will (and some others in some circumstances) are entitled to apply to the court to be appointed as administrators.

If the Will names a primary beneficiary to receive the bulk of the estate then they will be able to apply to be administrator in the first instance.

If the estate is divided into equal parts for multiple beneficiaries, then they will have the opportunity to apply to be the administrators.  They can all apply to jointly act as administrators or apply to appoint one of them to act as administrator with the other beneficiaries’ consent.

One of your beneficiaries has passed away

What happens if a beneficiary has predeceased the Will-maker will depend on how your Will has been structured.

If the Will names a “primary” beneficiary and has backup beneficiaries named in case the preferred “primary” beneficiary has passed away before the Will-maker, then the backup beneficiaries would take the deceased beneficiary’s share.  

A common example is that most Wills include a provision that says if the deceased beneficiary (usually a child of the Will-maker)  has predeceased the Will-maker leaving a child or children of their own, then that child or those children will inherit their parent’s share of the residue of the estate.

The Will could alternatively say that if one beneficiary dies before the Will-maker then the share that beneficiary would have received will be split between the other named beneficiaries who survive the Will-maker.

If the Will only names “primary” beneficiaries getting separate shares of the residue, and has no provision about what happens if a primary beneficiary dies before the Will-maker, then the intestacy rules would apply to that residue share that failed, and who would receive that share would depend on what relatives the Will-maker had.

A failed gift

One of the most common clauses that can fail in a Will is a specific gift. This can fail for a few reasons.

It may be that the Will-maker no longer owns the gift or that the person intended to receive the gift dies before the Will-maker.

Where the Will-maker no longer owns the gift then the gift will fail unless the clause specifically provides a substitute gift.

If the person that was supposed to receive the gift does not want it, or passes away before the Will-maker, then this gift will fail. If this happens then the gift will fall into the residue (balance) of the estate.

You should talk to your lawyer about what you want to happen in various scenarios, not just the first and most likely scenario.

You should also check your Will at least every five years. It may be when you drafted your Will that your children were too young to be appointed as executors or backup executors but later on in life it may make sense to appoint them as the executors or backup executors instead of say, a sibling who is of a similar age to you.

Your lawyer will be able to discuss all options with you to ensure your Will is future-proofed as far as possible.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.