The lapse rule, the s.33 Wills Act anti-lapse exception for children, the commorientes presumption for simultaneous deaths, and practical executor steps.
This guide is part of ProbateHelp's Probate Process guide cluster. Estimated reading time: 12 min.
This guide explains what can happen when a beneficiary named in a will dies before the person who made the will, including failed gifts, substitute beneficiaries, survivorship clauses and the need to read the will carefully.
It helps executors connect this issue with intestacy rules, beneficiary rights, estate distribution, final accounts and situations where legal advice may be needed before distributing the estate.
Also searched as: beneficiary dies before testator; beneficiary predeceases; what happens when a beneficiary dies before the testator; when a beneficiary dies before the testator.
No. Section 33 applies only to the testator's biological or legally adopted children and remoter descendants. Stepchildren are not included unless they were legally adopted. If a testator wants a gift to a stepchild to pass to that stepchild's children on predecease, they must say so explicitly in the will.
This is a class gift. The class is ascertained at the testator's death, so a child who has already died cannot be a member of the class. However, s.33 still applies to class gifts — the deceased child's own children will take their parent's share, provided s.33 is not excluded by the will.
No. The gift vested in the beneficiary at the moment of the testator's death. If the beneficiary then died before receiving the money, the gift forms part of the beneficiary's own estate and passes under their will or the intestacy rules. It does not lapse.
A deed of variation can redirect gifts between living beneficiaries, but it cannot create a gift to someone who has already died. If a gift has lapsed, the only way to redirect it is for the beneficiaries who actually inherit the lapsed share (under residue or intestacy) to execute a deed of variation redirecting it to whoever the testator would have wanted.
If the residuary gift lapses and there is no substitution clause, the estate falls into total intestacy. The intestacy rules then determine who inherits — which may be very different from the testator's wishes. This is one of the strongest arguments for keeping a will up to date.