What happens if a beneficiary in my will passes away before me?

If a beneficiary in your Will passes away the gift to him/her may fail.

You may already have read our will making tips at https://ezwills.com.sg/will-making-tips/ but there is one thing you need to pay attention to if you do not want to get things wrong.

If you name someone as a beneficiary and that person passes away before you two things can happen:

  • the gift lapses ie it fails (this is the rule); or
  • the gift does not fail and passes on to the deceased beneficiary’s estate (this is the exception).

Which of the two possibilities will apply depends on Section 26 of the Wills Act.

 

The General Rule when a beneficiary passes away

The general rule is that if any beneficiary passes away before the will maker the gift will lapse (ie fail). That beneficiary’s children receives nothing.

 

Section 26 creates an exception to the general rule

However, if the beneficiary is a child or “issue” of the will maker (ie grandchild, great-grandchild), Section 26 creates an exception.

Section 26 is not easy to read. You can find it here: https://sso.agc.gov.sg/Act/WA1838 .

If all the conditions set out in Section 26 are met then the gift ‘shall not lapse’.

The conditions set out in Section 26 are fairly straightforward. They are not difficult to satisfy (eg there must be no contrary intention to Section 26 being applied).

So if the beneficiary is a child of the will maker the gift will not automatically fail if that child passes away before the will maker because of Section 26’s operation.

Instead the Will shall take effect as if A died immediately after the will maker’s death.

 

Section 26 and blood relative (logic behind Section 26)

When a will maker is making a gift to a child or other descendant any off-spring of such a descendant is also a blood relative of the will maker.

Being a blood relative the will maker will have good reason to want to see the gift ‘pass on’ to the next generation instead of automatically failing.

Section 26 merely recognises that this is a common wish of most will makers.

 

Risk of using overseas templates and ‘generic’ Wills

At Ezwills our Wills allows Section 26 to apply.

Will templates or Will samples available online may have clauses that cancel out Section 26. Beware.

 

Complexities and practical operation of Section 26

You may be interested in our next blog post:

“How does Section 26 of the Wills Act work in practice if a beneficiary passes away first?”

Be warned – it may get too legalistic for some.

 

12 March 2019