A “gift over” in a will is when a willmaker has provided that if their intended beneficiary dies or does not survive them within the required time by law, the gift passes over to a substitute beneficiary they have nominated instead to inherit. The substituted beneficiary is really a second recipient chosen to inherit or take the gift should an event occur, here the death of the first or primary beneficiary. Other conditions and contingencies may apply depending on what the will says and surrounding circumstances. See infographic.
“Issue children” was used to describe a class of beneficiaries in a will. But it wasn’t clear what was intended and ultimately required resolution by the Court. We make a will so as to provide for our loved ones; to be able to choose who will inherit our property. But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy. For example the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children. More considerations on its meaning can be read here.
In a recent case a gift in remainder of real estate under a will had to be distributed.1 The will-maker had died in 1948. The two trustees of the estate were the surviving children of the will-maker’s only son, deceased. Their sister had pre-deceased their father, leaving children of her own. More →
Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect. Resolving the problem usually requires making an application to the Court. This causes expense and delay.
It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death? Can they be fixed so as to preserve what the deceased intended to happen? Or will it result in an intestacy?
Storing a will for safekeeping
Wills are important private and confidential documents which take legal effect on the death of its maker. An original will should be stored in a safe and secure place after being signed and witnessed. Ideally the place should be fireproof, and protected from tampering or destruction.
Willmakers should consider their personal circumstances, family and other relationships when considering storage options. In some situations storing a will at home is not advisable if it is likely persons adverse to what it contains can access it.
And make sure you inform your nominated executors or legal personal representatives of your original documents.
Joint tenancy and tenancy in common give different outcomes when an owner dies
Joint tenancy and tenancy in common are ways of owning property with others. Each works differently when an owner dies, see graphic below. This impacts who will inherit the deceased owner’s share. These graphics seek to highlight how each tenancy works.
In a joint tenancy, when one owner dies, the surviving one automatically owns the whole property. This happens independently of any will (and probate) because of the right of survivorship attaching to this tenancy type.