FAILURE TO BENEFIT ON A

TESTACY OR INTESTACY
MODULE 9
 LEARNING OUTCOMES

• DEFINE DISCLAIMER AND RESTRICTIONS ON DISCLAIMER;

• DEFINE LAPSE AND STATUTORY EXCEPTIONS TO LAPSE;
• DEFINE ADEMPTION AND DISCUSS THE PRINCIPLES GOVERNING ADEMPTION;
• DISCUSS WITNESSING A WILL AND EXCEPTIONS;
• DISCUSS FORFEITURE, UNCERTAINTY AND COMMORIENTES;
• DISCUSS FRAUD, ILLEGAL AND IMMORAL PURPOSE;
• DISCUSS THE EFFECT OF FAILURE AND FAILURE OF BENEFIT BY WILL OR AN INTESTACY;
AND
 REASONS FOR FAILURE

• TESTACY
• THE REASONS GIFTS CAN FAIL INCLUDE:
• DISCLAIMER
• LAPSE
• UNCERTAINTY
• WITNESSING THE WILL
 FAILURE UNDER TESTACY CONTINUED

• ADEMPTION
• ABATEMENT
• PUBLIC POLICY
 FAILURE UNDER INTESTACY

• ENTITLEMENT TO BENEFIT ON AN INTESTACY COULD FAIL

DUE TO:
• DISCLAIMER
• UNCERTAINITY
• PUBLIC POLICY
• ABATEMENT
 EFFECT OF FAILURE

• ON A TESTACY
• GIFT MAY FALL TO THE RESIDUE OF THE ESTATE; OR
• IF THE RESIDUARY GIFT FAILS THEN
• DISTRIBUTION ACCORDING TO THE RULES OF
INTESTACY
 EFFECT OF FAILURE ON AN INTESTACY

• BENEFIT WOULD PASS TO OTHER PERSONS ENTITLED

• E.G. – DISTRIBUTION PER STIRPES
 FAILURE TO BENEFIT- CONCLUDING POINTS

• USEFUL TO CONSIDER THESE ISSUES WHEN DISCUSSING CONSTRUCTION

(MODULE 1)
• ADVISE CLIENTS ON THE CONSTRUCTION OF THE PROVISIONS OF THE WILL
• WOULD THE GIFT PASS OR WOULD IT FAIL
• IF THE GIFTS FAIL- THEN ADVISE AS TO WHY IT FAILS AND
• WHAT WOULD HAPPEN TO IT AS A RESULT.
• NOTE THE RELEVANT CASES AND STATUTORY PROVISIONS TO SUPPORT YOUR
SUBMISSIONS