One of the foremost desires of most property owners is to be able to decide the manner in which their real and personal property will be disposed upon their passing. To achieve this people are advised to prepare a Will as early as possible; while they are both physically and mentally able to. By so doing they are afforded the opportunity of achieving a positive demonstration of their succession wishes. Where the property owner has made a Will, his Executors need only obtain a grant of probate; legally authorizing them to distribute the testator's property and give effect to carry out his other wishes relevant to his estate.
Oftentimes after a testator has prepared his Will however, what he goes on to do, deliberately or otherwise, is to accumulate more wealth; properties and other items of value. In fact, it is well known that an increase in a person wealth usually attracts even more property. While this can only be said to be to an estate owners advantage and, by extension, to those who will take after him (his successors), evidence shows that what such property owners omit to do however is make specific arrangements for those later acquired items. In other words, the earlier prepared Will is not revised to reflect the testator's enhanced status.
The other side of a devolved estate (i.e., aside the property items in respect of which the testator has made specific legacies), are those he fails to deal with at all. Known as the "residuary estate" or "residue", these terms are used to identify the remainder of an estate after specific gifts and bequests have been made, and all debts and liabilities are satisfied. Put differently, it consists generally of everything not specifically named or devised under a Will but which was in an individual's estate at the time of his demise; or property coming into the estate sequel to his passing. Even specific gifts may fall into the residue. For instance, on account of a gift failing or as a result of some other defect in the Will. Unforeseen circumstances such as the death of a beneficiary, may also occasion an estate residue.
One possible consequence of the foregoing is "partial intestacy". In other words, the testator's wishes are undermined to the extent that a gift which fails, or property not specifically bequeathed (later acquired property for instance), will form the residue of that individual's estate and devolve in a manner similar to a property owner who fails to make a Will at all. Put simply, the undistributed portion of the estate is administered in accordance with intestacy laws. And by so doing, defeating the testator's wishes and expectation of beneficiaries.
The good news is that this kind of intestacy can be avoided. On the one hand subjecting the Will to periodic reviews; once every 12/24 months reduces risks of lapse or of a gift falling. The fact that an estate may have may have expanded in the period since the Will was drafted or, less likely, it may have reduced in size, are factors critical to succession. A review presents an opportunity to take stock and to make alterations.
A residuary clause is of critical importance; it takes account of whatever property is left over after all gifts/legacies have been made (i.e., items not otherwise disposed of by the terms of the Will). Although the clause will not provide succor to a beneficiary whose gift is no longer a part of the estate (it may have lapsed), it has the effect of saving the estate from the negatives of partial intestacy and from the intervention of statute to determine inheritance. All said, it is also important the testator takes care in naming the beneficiary of the residue; for many of the reasons discussed above.
Property acquired sequel to the execution of a testator's Will need not suffer uncertainty or exposure to risks of the same devolving otherwise than in accordance with his wishes. Taking full advice is critical in these matters; to avoid misunderstanding.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
