Forfeiture
If beneficiary commits
felony (e.g. killing T)
this may result in partial
or total intestacy
Gift will also fail if it was
made for an illegal purpose Failure of Gifts
Gif will fail if it offends
the public sense ( a variety of reasons
most common instance
is that since
no one should benefit
from his crime, B who kills
T cannot take under the
Will)
Cleaver V
Mutual Reserve
Fund Life Asociation
[forefeiture applied
re insurance
proceeds]
Re Royse
[1984]
[forfeiture applied re
conviction of a wife
for manslaughter
on grounds of diminished
responsibility]
Re Houghton
[doesnt apply where
B is not guilty due
to reason of insanity]
Re K [1985]
[where Killer and
Victim are joint Tenants,
Killer cannot benefit
from suvivorship]
Lapse
Gift lapses if beneficiary
predeceases T
Elliot v Davenport
(1705)
Gift to Corporate
entity lapses if entity wound
up before T dies
Re Fingers W.T.
[1970]
Gift can be saved
by making alternative
provisions
Gifts can fail for
Reasons
Abatement
Where B receives either
a part of what was
left to him or nothing
at all
Ademption
Where by T's death Gift
ceases to be part of
estate - e.g. sold
while alive
Beneficiary attesting
Will
Where B attests or
subscribes the will
he (and anyone claiming
through him) will lose the gift
Section 10 Wills Act
[person or spouse]
[only charges and
payments of debts allowed]
Disclaimer
A gift will lapse if
a beneficiary chooses
to disclaim or renounce
Disclaimer should be d
one in writing, preferably
a deed
May be retracted provided
no one has altered his situation
in reliance on the said disclaimer
Townson v Tickell
(1891)
Forefeiture
Lapse
Uncertainty
Certainty of objects
and subject is
necessary
Asten v Asten
[1894]
[where 4 different houses
to go to 4 different sons;
didnt specify which to whom;
void for uncertainty]
Unless contrary intention,
If Gift lapses, fails b/c contrary
to law or otherwise incapable
of taking effect, it
falls into the residuary
(section 20) and
if no residuary , it
falls on intestacy
Section 20 Wills
Act
Introduction
A gift is a benefit given
by one individual to
another
T need not be related
to beneficiary
Testamentary Gifts do
not take effect until
after T dies
Gifts
Legacies
Gifts of personal
estate/Personalty
"I give" or "I beqeauth"
Types
Specific
Gift with sufficiency
or specificity - clearly
separated from general
estate
General
One which is not identified
with specificity but
is to be provided
by PR for legatee out
of estate - e.g. I bequeath
a BMW X6 motor vehicle
Pecuniary
Gift of money -
can be general, specific
or demonstrative
Demonstrative
Gift of a general
or non specific nature - to be
paid from a particular
source or fund
Residuary
All personalty that normally
falls under the residuary clause
of a will paid after all
other legacices satisifed
Some Principles
Commorientes Donatio Mortis Causa
For purposes of Must be made in contemplation
determining succession of Donor's imminent death
where two persons die
together and it is [donor must be at point of
impossible to determine death - in extremis
who died first - younger or in articulo mortis]
is presumed to survive
the older Given on the condition that
it is valid and irrevocable
Hickman v Peacey
[1945]
on donor's death
Gift must be given by donor to
Donatio Mortis Causa
(DMC) [must satisfy 4 donee or donee's agent with
intention to part with control
conditions to be valid
or dominion over gift
DMC]
Gifts Inter Vivos Gift must be capable of
These are gifts made being a Donatio Mortis
during lifetime of Donor Causa
and can be reovcable
depending on
instrument giving item
Devises
Gifts vesting
Interest in land/realty
Types
Testator's wishes
Specific
Gift of particular parcel
of real estate clearly
is relevant
indentified T can turn a gift that is
General specific into a general
Gift of an interest in and vice versa -
land of a non-specific
Will must express this inetntion
nature
e.g a "parcel of land"
or Re Compton
"all my real estate..." [1914]
[Where held that specific gift of
Residuary stocks, bonds and shares
Interest in land devised were intended to be treated
via a residuary clause as general by T]
in a will