How Section 26 of the Wills Act works if a beneficiary who is a child of the will maker dies first

If a beneficiary who passes away before the will maker is a child of the will maker, Section 26 of the Wills Act may apply.

This follows up on an earlier post ‘What happens if a beneficiary in my Will dies before me?’ .

If a beneficiary in a Will but dies before the will maker then either:

  • the gift lapses ie it fails (this is the rule) and his/her children will receive nothing; or
  • the gift does not fail and passes on to the deceased beneficiary’s estate (the exception).

Section 26 of the Wills Act creates an exception to the rule that the death of a beneficiary causes the gift to fail.

Certain conditions must be satisfied for Section 26 to apply. Also Section 26 works in a peculiar way which needs a little explanation.

Section 26 of the Singapore Wills Act Chapter 352

If a named beneficiary (Person A) is a child or issue (ie grandchild or great-grandchild) of the will maker for Section 26 to apply :

  • Person A must have a child or grandchild of his/her own (Person B); &
  • Person B must be alive when the will maker passes away; &
  • the Will does not say that the gift is to fail in the event person A dies before the will maker; &
  • the Will expresses no contrary intention to Section 26 applying.

If any of these four conditions are not met the gift fails.

The first two conditions are factual. Either a beneficiary is a child of the will maker and has a child who out-lives the will maker or not.

The other two conditions are trickier.

It is possible to make a Will that unintentionally prevents Section 26 from applying by having a clause in the Will that shows a “contrary intention”. This can happen if a person uses a Will sample or Will template without fully understanding the contents in them.

Example of a clause that prevents Section 26 from applying

A Will may have a clause that says :

“In the event any of the beneficiaries referred to in Clause x shall predecease me, then the share which such deceased beneficiary of mine would have been entitled to had [he/she] been alive shall lapse absolutely and shall be given to the surviving beneficiary”

Such a clause deliberately excludes the operation of Section 26.

Those choosing to make a Will without a lawyer on your own you need to understand the consequences of having a Will with such a clause.

If Section 26 applies how does it work in practice?

If Section 26 applies then the Will shall take effect as if the beneficiary who is a child of the will maker died immediately after the will maker’s death.

So the share of a child who dies before the will maker does not go directly to his/her children.

The deceased beneficiary’s share is passed to his or her estate instead. The estate is than distributed in accordance with his or her Will. So if that beneficiary had no Will the laws of intestacy applies.

5th April 2019

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