Last week I took the opportunity to suggest that it is always worthwhile to remind those drafting wills to consider the issue of gift over clauses. I also mentioned that if a beneficiary pre-deceases the deceased the gift will lapse. One important exception to this is section 98 of the Succession Act. This provides as follow

98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

The short summary of the above provision is that where a testator has left a bequest to a child or any issue and that child or issue dies before the testator (and that beneficiary also has issue at the date of death of the testator), then the gift does not lapse, but rather falls into the estate of the beneficiary. In essence, then the bequest falls in accordance with the will of the pre-deceased child or on intestacy if such pre-deceased beneficiary did not make a will.

The conditions of the operation of section 98 are relatively clear as per the above. The important point to bear in mind is that the provisions operate automatically. Therefore it is key that the consequences of the section are brought to the attention of testators at the will drafting stage. If a child of a testator has issue, then generally that child is married or has a partner. Generally, that child will have made a will leaving his or her estate to their spouse/partner. So, it needs to be made clear to clients that a son or daughter-in-law are the likely inheritors of a benefit going to a pre-deceased child. This may or may not sit comfortably with your testator. From experience, clients generally prefer any lapsed gifts to pass to their grandchildren rather than to a daughter or son-in-law, but obviously, each case is different. With the benefit of your advice they can cater for this potential issue and will thank you all the more for bringing it to their attention.

While section 98 is automatic it can be dis-applied by appropriate drafting. Likewise, if testator clients wish to have section 98 apply, then its best to specifically refer to it in the will, to demonstrate that it has been addressed. Either way drafting is required to deal with section 98.

This brings one to the question of the most appropriate language to use for drafting around this and all issues regarding lapse dealt with in the last number of blogs. This will be the subject of some future blogs on this area.

I hope you find this useful and if you have any will drafting, probate, or tax queries please do not hesitate to email me at ckelly@hcalaw.ie