Gifts and beneficiaries

Gifts and beneficiaries

Contents

This information applies only to England, Wales and Northern Ireland.

Types of gift

In wills, you are generally able to make three different types of gift - specific, pecuniary (i.e. related to money) and residuary. These types of gift are described below:

Specific

A specific gift is a gift of a particular item, or group of items of property. For example, you may leave a piece of jewellery or all of your jewellery to a friend or relative.

The item or items may or may not be owned by the person making a will when the will is made.

Where the gift is of specific property that the testator owns when he or she makes their will and the testator disposes of that property during his or her lifetime, the gift will fail. This is because only that specific thing can be gifted. This is known as ?ademption? and the gift is said to be ?adeemed?. For example, the gift in the clause 'My yacht to my friend Natasha.' in the will of a testator who sold the yacht a few months prior to his death for ?30,000 is said to have been adeemed. Unlucky Natasha cannot claim the ?30,000.

Where the gift is of property that the testator did not own at the time the will was made, it will not be adeemed. The property that is the subject of the gift will need to be provided out of the testator?s general estate; for example, if a testator makes a gift of 4,000 shares in a quoted company, the executors of the estate will need to use money in the estate to purchase such shares, or sell other assets in the estate to raise money for this purpose.

The gift, however, even though it is not adeemed, may fail - for example, if (using the above example) the quoted company has ceased to exist by the time of the testator?s death.

See our ?Losing a gift? section for more information.

Pecuniary

A pecuniary gift is simply a gift of money.

Residuary

A residuary gift is a gift of what is left (known as the residuary estate or residue) of your property when you die after payment of debts, expenses and gifts of a specific or pecuniary nature as described above. If no other gifts are made, a gift of everything that is left in the estate, after payment of debts and expenses is a residuary gift. Normally, it is provided that all the debts, expenses and other gifts are to be paid out of the residue before it is distributed.

Beneficiaries

'Beneficiary' is the term used to describe a person to whom you have left a gift in your will. There are some specific rules for certain beneficiaries which are described below:

Claims against estates

The Inheritance (Provision for Family and Dependants) Act 1975, or its Northern Ireland equivalent The Inheritance (Provision for Family and Dependants) (NI) Order 1979, gives certain rights to your spouse or partner and to anyone who is wholly or partly maintained by you at the time of your death. If you do not adequately provide for such people (your 'dependants'), they may be able to apply to the Court after your death, to effectively have the terms of your will altered to include them. Writing a letter of wishes can help to defend such claims by explaining why you have left out certain dependants, although in most cases, the reasonableness of the distribution of your estate will be the primary consideration, rather than the reasonableness or otherwise of your actions.

Gifts to children

Children who are under the age of 18 are deemed to lack legal capacity to receive a gift.

Where a gift in your will is going to a child under 18 (which may be a child of a deceased beneficiary), you can give your executors and trustees the option to make the gift to the child's parent or guardian. This does leave the risk that the child will never benefit from the gift (because their parent or guardian will use it up), but it is also possible that the parent or guardian can use the gift for the benefit of the child immediately.

If you are leaving your residuary estate to your children, you may specify an age between 18 and 25 when they become entitled to their gift. There are some tax implications if you decide not to give your children the residue at age 18.

Beneficiaries who die before you

If you leave a gift of money or a specific item to someone who dies before you, the gift may lapse and form part of the residue of your estate (the 'residue'). This is referred to as 'the doctrine of lapse'. There are exceptions to the doctrine of lapse and the exception that applies most commonly in practice covers gifts to children of the testator.

In terms of this exception, gifts to the deceased?s children won?t lapse where the child of the testator has also had children, who are still alive. The gift will pass to those children and be shared equally amongst them. If you leave a gift to a residuary beneficiary who dies before you, the gift will also pass according to the doctrine of lapse and its exceptions if you haven?t instructed otherwise in your will. If a gift to a residuary beneficiary lapses and you have not provided for an alternative recipient, the rules of intestacy will determine how that gift is dealt with.

The doctrine of lapse (and its exceptions) and the rules of intestacy can have undesirable consequences because the gift might be dealt with in a way that you wouldn?t have approved of. There are a number of ways of ensuring you control what happens to your gift. For example, you could provide in your will that in instances where this might happen, the gift goes, in equal shares or whatever proportion you choose, to any children the beneficiary has, or to an alternate beneficiary that you have selected.

Gifts to charities

There are so many charities that raise money for a variety of good causes, and they rely on the generosity of the public to continue the valuable work they carry out. Whilst you will naturally want to make adequate provision in your will for your family and friends, you may want to consider a gift to a favourite charity as well.

Gifts to UK registered charities in your will are tax exempt, and therefore do not reduce your general nil-rate band. Making a gift is simple. Just get the name, address and registered number of any charities you wish to give to and decide what gift(s) you wish to make. You can make a gift of money, specific items, or include them as a residuary (or ultimate residuary) beneficiary. If you wish the gift to be used for any specific purpose, this can be stated in a letter of wishes.