When the intended recipient of a gift in a will passes away before the testator, it results in a lapsed devise. Consequently, the property does not transfer to the intended recipient and instead goes to either the estate or another individual. A devise can encompass any asset, such as money or land, that the testator wishes to distribute through their will. Occasionally, alternative terms like “bequeath” are utilised to refer to non-land assets. Historically, the term “devise” was used to describe all types of gifts in a will.
A lapsed devise, also known as a failed devise or failed gift, refers to a gift of property made in a will that becomes invalid because the intended recipient has passed away before the testator. In such cases, the property in question will not be inherited by anyone and will instead be included as part of the deceased person’s estate. For instance, if someone leaves their house to their sister in their will, but the sister dies before the testator, the gift of the house will lapse, and the house will be considered part of the testator’s estate.
A lapsed devise refers to a situation where a beneficiary named in a will predeceases the testator (the person who made the will). In such cases, the gift or devise intended for the deceased beneficiary fails and does not pass to their heirs or any other alternate beneficiaries.
When a devise lapses, it typically falls into the residuary estate, which is the portion of the estate that is left after all specific gifts have been distributed. The residuary beneficiaries, as named in the will, will then receive the lapsed devise.
In general, a lapsed devise cannot be revived unless there are specific provisions in the will that allow for revival or if the court determines that the lapse was due to a mistake or ambiguity in the will.
Yes, a testator can prevent a devise from lapsing by including a substitution clause in the will. This clause allows for an alternate beneficiary to receive the gift if the primary beneficiary predeceases the testator.
If there is no residuary clause in the will, the lapsed devise may pass according to the laws of intestacy, which determine how assets are distributed when there is no valid will. This means that the lapsed devise may go to the testator’s closest living relatives.
Yes, a testator can revoke a lapsed devise by creating a new will or codicil that specifically addresses the lapsed devise and designates a new beneficiary.
In some cases, a lapsed devise can be challenged in court if there are allegations of undue influence, fraud, or lack of testamentary capacity. However, the burden of proof lies with the party challenging the devise.
Yes, a testator can disinherit a potential lapsed devise beneficiary by explicitly stating their intention to exclude them from the will. It is important to consult with an attorney to ensure the disinheritance is properly documented and legally valid.
Yes, a lapsed devise can be revived through a codicil, which is a legal document used to make amendments or additions to an existing will. The codicil must clearly state the testator’s intention to revive the lapsed devise and designate the new beneficiary.
Yes, a lapsed devise can be avoided by utilizing joint ownership or beneficiary designations for certain assets. By designating joint owners or beneficiaries, the assets will pass directly to them outside of the probate process, thereby bypassing the issue of lapsed devises.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 16th April 2024.
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