What Happens When Part of the Residue Fails?
If a residuary beneficiary predeceases the testator and s33 Wills Act 1837 does not apply, the lapsed share may fall into partial intestacy — not to the other residuary beneficiaries — unless the will contains a survivorship provision.
Scenarios at a Glance
Will leaves residue to A and B equally, A predeceases (no issue)
Outcome: Partial intestacy
A's lapsed half falls on intestacy — goes to the intestacy beneficiaries (often the same people, but may differ). B gets only half.
Drafting note: Add: 'to the survivors of them in equal shares' or 'to A and B, and if either predeceases me to the other'.
Will leaves residue to A and B 'as tenants in common in equal shares, or if either predecease me to the survivor'
Outcome: B takes all
The survivorship clause prevents partial intestacy. B takes A's share by virtue of the express gift over.
Drafting note: Already well-drafted.
Will leaves residue to A and B as 'joint tenants'
Outcome: B takes all (by survivorship)
The right of survivorship under a joint tenancy means B automatically takes the whole residue on A's death before the testator. No partial intestacy.
Drafting note: Confirm whether tenants in common or joint tenants was intended — different IHT consequences.
Will leaves residue to A and B equally; A predeceases but leaves children (A's issue survive)
Outcome: s33 WA 1837 saves the gift
Section 33 Wills Act 1837 prevents lapse for gifts to the testator's own children or remoter issue who predecease leaving their own issue. A's share passes to A's children.
Drafting note: s33 only helps where A is the testator's own descendant — not for siblings, friends, or unrelated beneficiaries.
Frequently Asked Questions
What is partial intestacy and when does it arise from a failed residuary gift?
Partial intestacy arises when a will disposes of some, but not all, of the testator's estate — the undisposed property passes under the intestacy rules. A failed residuary gift is a common cause: if one of two equal residuary shares lapses (because the beneficiary predeceased) and the will contains no survivorship clause or gift over, the failed share is 'undisposed of by will' and falls into partial intestacy. The intestacy rules (AEA 1925 s46) then determine who takes that share — which may be different from, and in conflict with, the testator's overall intentions. Partial intestacy from a residuary failure is avoidable by careful will drafting with appropriate survivorship provisions.
Does section 33 Wills Act 1837 prevent a residuary gift from lapsing?
Section 33 Wills Act 1837 prevents lapse for gifts to the testator's own children (and remoter descendants) who predecease, provided that predeceasing beneficiary left their own issue surviving the testator. In that case, the gift passes to the issue of the deceased beneficiary per stirpes, rather than lapsing. However, s33 is limited: it only applies where (1) the predeceasing beneficiary is the testator's own descendant (child, grandchild, etc.), AND (2) that beneficiary left issue who survive the testator. Section 33 does NOT prevent lapse where the residuary beneficiary is a sibling, a friend, a charity, a spouse, or any person who is not the testator's own descendant. For those cases, if the will contains no survivorship provision, the gift lapses and partial intestacy arises.
What does LPA 1925 s175 do for residuary gifts?
Section 175 Law of Property Act 1925 provides that a contingent or future testamentary gift carries with it intermediate income during the period before the gift vests — it is a provision about entitlement to income during the administration period, not a rule about lapse and accrual. The key provision for avoiding partial intestacy from a lapsed residuary share is not s175 but the wording of the will itself: a gift to 'A and B as joint tenants' carries the right of survivorship; a gift to 'A and B as tenants in common in equal shares or to the survivor of them' contains an express gift over. Where neither applies and a share lapses, Re Sibley and similar cases confirm that the failed share passes on partial intestacy rather than accruing to the surviving residuary beneficiary.
How does a survivorship clause prevent partial intestacy?
A survivorship clause in a will provides a gift over in the event that a named beneficiary predeceases. For residue, the standard form is: 'I give the residue of my estate to A and B in equal shares, but if either of them shall predecease me then their share shall pass to the survivor of them.' This clause creates an express gift of the failed share to the surviving residuary beneficiary — so if A predeceases, B takes A's share under the express survivorship provision. There is no gap, no undisposed property, and no partial intestacy. An accruer clause (common in legacies to joint beneficiaries) can serve the same function in the context of a residuary gift. Testators with multiple residuary beneficiaries should always include a survivorship or accruer clause to prevent the intestacy rules from interfering with their wishes.
What is the difference between a failed residuary gift and a lapsed specific legacy?
Both a failed residuary gift and a lapsed specific legacy result from a beneficiary predeceasing the testator (where no anti-lapse provision applies). But their consequences differ: (1) a lapsed specific legacy falls into residue — it becomes part of the residuary estate that passes to the residuary beneficiaries; (2) a failed residuary gift does not simply pass to the other residuary beneficiaries (unless the will says so) — it becomes undisposed property passing on partial intestacy. This asymmetry is important: a careful testator should ensure both that specific legacies have substitution provisions and that residuary gifts include survivorship clauses. Without both safeguards, different parts of the estate may end up in unexpected hands.
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