Definition
Lapse is when a gift in your will fails because the intended beneficiary has died before you, causing that gift to return to your estate's residue unless specific exceptions apply.
Understanding lapse is critical because many people write wills and don't update them for years. During that time, beneficiaries may die, creating unintended consequences for how your estate is distributed.
What Does Lapse Mean?
Under English and Welsh law, when someone you've named in your will dies before you, their gift "lapses" or fails under the doctrine of lapse. The gift doesn't go to the deceased beneficiary's estate or family—instead, it falls back into your estate's residue (the remaining pot after specific gifts) and gets redistributed according to your residuary clause. If a residuary gift lapses, it passes under intestacy rules instead.
However, Section 33 of the Wills Act 1837 creates an important automatic safety net. If you leave a gift to your own child or remoter descendant and they die before you but have children of their own alive when you die, those grandchildren automatically inherit the gift instead. For example, Sarah leaves £50,000 to her daughter Emma. Emma dies before Sarah, but Emma's two children are alive when Sarah dies. The £50,000 automatically goes to Emma's children, £25,000 each, under Section 33.
Section 33's protection only applies to gifts to your own children or descendants—not stepchildren, siblings, nieces, nephews, or friends. If David leaves £20,000 to his best friend James and James dies first, the gift lapses into David's residue even if James had children. Section 33 also only works if the deceased child left children alive at your death.
You can exclude Section 33 by including wording showing "contrary intention" in your will, but this requires careful drafting by a solicitor. The best approach to lapse is including substitution clauses or naming contingent beneficiaries—alternative recipients if your primary beneficiary predeceases you. This gives you control over where assets go rather than relying on residue or intestacy rules.
Common Questions
"What happens if someone I've left money to in my will dies before me?" If a beneficiary dies before you, their gift normally lapses and returns to your estate's residue. However, if that beneficiary was your child or grandchild and they have children alive when you die, those children automatically inherit instead under Section 33 of the Wills Act 1837.
"Does my sister's inheritance go to her children if she dies before me?" No, not automatically. Section 33 only creates automatic substitution for gifts to your own children or descendants, not siblings. If your sister predeceases you, her gift will lapse unless you've included a substitution clause naming her children as alternatives.
"Can I stop my grandchildren from automatically inheriting if my son dies before me?" Yes. Section 33's automatic substitution only applies "unless a contrary intention appears by the will." You can exclude it with specific wording, but this requires careful drafting by a solicitor.
Common Misconceptions
Myth: If someone I name in my will dies before me, their inheritance automatically goes to their spouse or children
Reality: This is wrong in most cases. Under the doctrine of lapse, when a beneficiary predeceases you, their gift returns to your estate's residue—it does not go to the deceased beneficiary's estate, spouse, or family. The only exception is Section 33: if the beneficiary was your child or remoter descendant and they left children alive at your death, those children (your grandchildren) inherit instead. This doesn't apply to friends, siblings, nieces, or other beneficiaries.
Myth: If my child dies before me, their inheritance is automatically divided equally among all my grandchildren
Reality: Section 33 divides lapsed gifts among the deceased child's own children only, not among all your grandchildren equally. If you leave £60,000 to your daughter who has three children, and she predeceases you, those three children each get £20,000. Your other grandchildren don't get any of that £60,000—it's distributed per stirpes (by branch), not per capita (per head).
Related Terms
- Beneficiary: Lapse occurs when a named beneficiary dies before the testator.
- Substitution: Express clauses that prevent lapse by naming alternative recipients.
- Per Stirpes: How gifts divide among grandchildren when Section 33 prevents lapse.
- Ademption: A different gift failure occurring when a specific asset no longer exists.
- Contingent Beneficiary: An alternative recipient if your primary beneficiary predeceases you.
Related Articles
- Understanding Will Basics: Learn how lapse affects estate distribution and why reviews matter.
- Common Will Mistakes: Why failing to plan for lapse is a common error.
- Planning for Family Changes: How lapse rules interact with complex family situations.
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Legal Disclaimer: This glossary entry provides general information about UK legal terminology and does not constitute legal advice. For advice specific to your situation, consult a qualified solicitor.