When a beneficiary of an estate dies before the will maker the general rule is that the gift to that decease beneficiary fails. Section 26 of the Wills Act creates an exception to this general rule.
Section 26 may apply if the deceased beneficiary is a child, grandchild or great grandchild of the will maker. If that deceased beneficiary has a child or grandchild of his/her own who is alive when the will maker dies than the gift to that deceased beneficiary may pass on that deceased beneficiary’s estate.
Certain conditions must be satisfied for Section 26 to apply. Also Section 26 works in a peculiar way which needs a little explanation. This article discusses in greater detail how Section 26 works.
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 doesn’t say that the gift is to fail if Person A dies first; &
- the Will itself doesn’t prevent Section 26 applying
then Section 26 will apply. However, if any of these four conditions are missing then the gift to Person A 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