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DOCTRINES TOUCHING ON FAILURE OF GIFTS


A will disposes of property in the form gifts to the beneficiaries. There are various forms or classes of gifts, and doctrines governing them.

Types of Gifts
A gift by will may be of immovable (realty) or movable (personalty) property. In the past a gift of immovable property was called a devise, while that of movable property was termed a legacy. The modern approach is to use the term legacy to refer to both classes of gifts. There are four main types of gifts, namely:
  • specific gifts – gift of property forming part of the testator’s estate that is distinguished in the will from other property of the same kind
  • general gifts – gift that is not in any way distinguished from property of the same kind. General gifts tend to be pecuniary legacies.
  • demonstrative gifts – that is expressed as payable out of a particular fund or property.
  • pecuniary gifts
  • residuary gifts – gift of a testator’s residuary estate

The Doctrine of Ademption
S 23 and Schedule II to the Act provides for ademption. Where a specific gift is made, the gift will fail for ademption if the subject matter of the gift does not form part of the testator’s estate at the date of his death. Ademption is likely to occur because the property has been sold, given away or destroyed during the testator’s lifetime.

Doctrine of Lapse
S 23 & Schedule II also contains this. A gift lapses if a beneficiary under a will predeceases the testator. If the gift is not a residuary gift, the property will fall into residue. If the gift is a residuary gift, the property will pass according to the rules of intestacy unless there is substitutional gift of the residue.

Commorientes
If the death of a beneficiary under a will and that of the testator occur close together, it will be necessary for the executors to try to establish who died first. Where there is no evidence as to the order of deaths, as where persons die in a common accident, for the purpose of succession the deaths are presumed to have occurred in order of seniority S 43 of the LSA. The elder person is presumed to have died first. This provision, however, does not apply to spouses, who are presumed to have died simultaneously.

Mistake, Fraud and Undue Influence
The presence of a mistake, fraud and undue influence may lead to the lapse of one or more gifts made in the will.

Uncertainty
A gift will fail for uncertainty unless the subject matter of the gift and the beneficiaries can be identified with sufficient certainty. A gift may fail for uncertainty where the beneficiary is described in terms that are uncertain e.g., a gift to friends may fail for uncertainty. In In the Matter of George Percy Smithson, Deceased (1942) 22 EACA 14 (Lucie-Smith J) a gift of the residue of the estate to ‘African Leper Missionaries and Leper Hospitals at present and to be established in Africa only’ was found to be a good charitable bequest which was void for uncertainty and impossibility of performance.

Beneficiary or Spouse of Beneficiary Witnessing the Will
The validity of a will is not affected where a beneficiary or a spouse of a beneficiary acts as an attesting witness, but S 13 of the LSA provides that a gift will fail if the beneficiary or their spouse has witnessed the will.

Forfeiture
A beneficiary who is convicted of the murder of the testator is prevented on the basis of public policy from benefiting under the testator’s will (S 96 of the LSA).

Perpetuity
A gift which affects perpetuity may fail. S 25 & IV Schedule

 
 
 

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