Contingent Gift in a Will UK: Vested vs Contingent Legacies and the Class Closing Rules

Updated 31 May 2026 · 8 min read · Wills & Trust Law

A contingent gift only takes effect if a condition is satisfied — reaching a certain age, surviving the testator by a specified period, or some other event. Understanding when a gift is contingent (rather than vested) affects the entire structure of the trust, who takes intermediate income, what happens on failure, and how class gifts to grandchildren are timed.

Vested vs Contingent: The Core Distinction

A vested gift takes effect unconditionally on the testator’s death. The beneficiary has an immediate indefeasible right — nothing else needs to happen. A contingent gift is subject to a condition precedent that must be satisfied before the beneficiary becomes entitled.

Vested: “I give my car to my sister Anne.” — Anne is entitled from the date of death. If Anne predeceases, the gift falls to her estate.
Contingent: “I give £20,000 to my nephew Tom if he reaches the age of 25.” — Tom has only a contingent interest until he turns 25. If he dies at 24, the gift fails and passes to residue (unless a gift over is provided).
Contingent on survival: “I give my residuary estate to my wife Jane if she survives me by 30 days.” — Jane takes only if she is alive 30 days after the testator’s death.

Conditions Precedent vs Conditions Subsequent

Most contingent gifts use conditions precedent: the gift does not vest until the condition is fulfilled. Some wills use conditions subsequent: the gift vests immediately but is defeasible if a specified event occurs.

Condition precedent example: “to my daughter if she qualifies as a doctor.” — no vesting until qualification.
Condition subsequent example: “to my son, but if he is convicted of a criminal offence, to my daughter.” — the son takes immediately; the gift is divested if the specified event occurs.

Conditions subsequent are difficult to enforce and may be void: conditions that are impossible to perform, uncertain in meaning, or contrary to public policy (such as absolute restraints on marriage or conditions that require the beneficiary to commit an illegal act) are struck out, and the gift then passes as if the condition did not exist.

Class Gifts and the Andrews v Partington Rule

A class gift is a gift to a group of people who share a common characteristic — “my grandchildren”, “my nieces and nephews”, “the children of my sister.” When combined with a contingency (e.g., “to all my grandchildren who reach 21”), a practical problem arises: the class might remain open for decades as new grandchildren are born, making it impossible to distribute to those who have already satisfied the condition.

The rule in Andrews v Partington (1791) solves this by closing the class at the earliest moment when distribution can be made — typically when the first member satisfies the contingency (reaches 21) and there is at least one member in the class. Once the class closes, later-born members are excluded even if they would otherwise satisfy the contingency.

Example: A grandfather leaves “£60,000 to be divided equally among all my grandchildren who reach 21.” At his death there are three grandchildren aged 22, 18, and 3. The class closes when the first eligible grandchild reached 21 — so only grandchildren born before that moment (whether or not they have been born yet when the grandfather died) share in the fund. The 22-year-old and 18-year-old (if they reach 21) and the 3-year-old (if she reaches 21) all share; any grandchild born after the class closes does not. The rule is a default rule — it can be excluded in the will by stating that the class remains open until a specified later date.

What Happens if a Contingent Gift Fails?

If the condition precedent is never satisfied — the beneficiary dies before the specified age, the event never occurs — the gift fails. The property then:

Passes to the gift over if one is provided in the will.
Falls into the residuary estate if no gift over is provided.
Passes on partial intestacy if the failed gift was the residuary gift itself and no alternative residuary beneficiary is named.

Exception — Wills Act 1837 s.33: Where a child or remoter descendant of the testator predeceases, leaving issue who survive, s.33 prevents the gift from lapsing — it passes instead to the deceased beneficiary’s own issue. This applies only to children and remoter descendants of the testator, not to other beneficiaries such as siblings or friends.

Intermediate Income and Trustee Act 1925 s.31

While a contingent gift remains contingent — the fund is being held pending the beneficiary reaching the specified age — income is generated by the invested fund. Who receives it? The Trustee Act 1925 s.31 implies default rules:

Trustees may apply income for the maintenance and benefit of a minor contingent beneficiary at their discretion.
Surplus income is accumulated during minority and added to the fund.
Once the contingent beneficiary reaches 18, they are entitled to receive income even if the capital contingency (e.g., reaching 25) has not yet been satisfied — unless the will provides otherwise.

A well-drafted will can override s.31 — requiring income to be accumulated until the contingency is resolved, or directing that income be paid to another named beneficiary during the contingency period.

FAQs

What is the difference between a vested gift and a contingent gift in a will?

A vested gift is one that is unconditionally given to an identified beneficiary at the point the will takes effect (i.e., on the testator's death). The beneficiary has an immediate, indefeasible right to receive the gift — there is no condition that must be satisfied before entitlement arises. A contingent gift, by contrast, is subject to a condition precedent that must be fulfilled before the beneficiary becomes entitled: for example, 'to my nephew John if he reaches the age of 25', or 'to my daughter Sarah if she survives me by 30 days'. Until the condition is satisfied, John or Sarah has only a contingent interest — they are not yet entitled to the gift. If John dies before reaching 25, or Sarah dies within 30 days of the testator, the contingent gift fails and the property falls back into residue (or passes under a gift over, if one is provided). The practical consequences differ significantly: a vested beneficiary's interest passes to their own estate if they die before distribution; a contingent beneficiary who fails to satisfy the condition loses all entitlement.

What is a condition precedent and a condition subsequent in a will?

A condition precedent is a condition that must be satisfied before a gift vests — the beneficiary acquires no right until the condition is met. Example: 'To my son Tom if and when he qualifies as a solicitor.' Until Tom qualifies, he has a contingent interest only; if he never qualifies, the gift fails. A condition subsequent is a condition on which a vested gift may be divested — the gift vests immediately but may be taken away if a specified event occurs. Example: 'To my daughter Emma, but if she marries without my executors' consent, then to my nephew.' Emma takes the gift on the testator's death, but her interest is subject to defeasance if she marries without consent. Conditions subsequent are rarely used in modern wills because they are difficult to enforce and may be void for public policy reasons (e.g., conditions that seek to prevent marriage entirely, conditions that are uncertain in meaning, or conditions that amount to an unreasonable restraint on trade). Most contingent gifts use conditions precedent — the beneficiary must first satisfy a condition before taking.

When does a contingent gift vest?

A contingent gift vests when the condition precedent is satisfied. For age-contingent gifts ('to my grandchildren who reach 21'), vesting occurs when each grandchild reaches the specified age. For survival contingencies ('to X if she survives me by 30 days'), vesting occurs at the end of the survival period if the beneficiary is still alive. For gifts contingent on an event ('to my son if he graduates'), vesting occurs when the event happens. Once vested, the gift is the beneficiary's property and forms part of their estate if they subsequently die before it is physically distributed. The Administration of Estates Act 1925 allows personal representatives to retain undistributed contingent gifts in the estate without liability until the contingency is resolved — the executor's year rule gives at least one year before beneficiaries can compel distribution. During the contingency period, the contingent gift is often held in a trust for the contingent beneficiary, with income accumulated or paid at the trustees' discretion pending vesting.

What is the Andrews v Partington class-closing rule?

The rule in Andrews v Partington (1791) 3 Bro CC 401 is a rule of construction that determines when a class gift (a gift to a group such as 'my grandchildren') closes — i.e., when the class of beneficiaries becomes fixed and no further members can enter it. The rule applies to contingent class gifts: a class gift closes at the earliest moment when (a) the first member of the class satisfies the contingency and (b) there is at least one person already entitled to share. The rule prevents the class from remaining open indefinitely — which would prevent distribution until all possible members were known. Example: 'to all my grandchildren who reach 21.' The class closes when the first grandchild reaches 21. Any grandchildren born after that point are excluded from the gift, even if they later reach 21. The rule is a rule of convenience, not of law — it can be excluded by contrary intention in the will. It is highly relevant for class gifts to children or grandchildren in trusts that must close before distribution can be made.

What happens if a contingent gift fails?

If a contingent gift fails — because the beneficiary fails to satisfy the condition precedent (dies before the specified age, fails to survive the required period, or the event never occurs) — the property does not pass to the intended beneficiary. Instead, it follows the 'gift over' if one is provided: 'to my son James if he reaches 21, but if he does not, to my daughter Anne.' If no gift over is provided, the property falls back into the residuary estate and passes to the residuary beneficiary. If the residuary gift also fails, the property passes on partial intestacy. A failed specific contingent gift falls into residue; a failed residuary contingent gift passes on intestacy. One important exception: if the contingent beneficiary has issued (children) who survive and the will does not make contrary provision, the Wills Act 1837 s.33 may save the gift — it provides that where a child or remoter descendant of the testator has predeceased the testator leaving issue who survive, the gift does not lapse but passes to those issue. S.33 only applies to children and remoter descendants of the testator — not to nephews, nieces, or other beneficiaries.

How should contingent gifts be drafted to avoid problems?

Key drafting best practices for contingent gifts: (1) State the contingency clearly — 'if she survives me by 30 clear days' is unambiguous; 'if she is alive' is less certain at exactly what point survival must be established. (2) Provide a gift over — specify what happens if the contingency fails: 'if X fails to reach 21, the gift is to pass to Y absolutely.' Without a gift over, failure falls into residue, which may not be what the testator intended. (3) Address the Andrews v Partington rule expressly — if you want a class gift to remain open beyond the first member satisfying the contingency, say so: 'to such of my grandchildren as reach 21, whether born before or after my death, the class to remain open until [date/event].' (4) Consider income entitlement during the contingency — if there is a contingent age gift, state whether the contingent beneficiary is entitled to income from the fund before vesting, or whether it should be accumulated. (5) Specify who takes intermediate income — this interacts with the Trustee Act 1925 s.31, which implies a power to pay income to contingent beneficiaries at the trustees' discretion. Express provision overrides the statutory default.

Make Your Gifts Clear and Effective

Contingent gifts, class gifts, and age-contingent legacies all require careful drafting to work as intended. WillSafe’s DIY will kit for England and Wales puts a legally valid will in place quickly for straightforward estates. For trusts with complex contingency and class gift provisions, we recommend pairing it with specialist legal advice.

Start Your Will ›