The Forfeiture Rule and the Law of Succession ... - Law Commission

default beneficiary to benefit as if the primary beneficiary had died. Some
variables are as follows.
(1) The will may or may not contain a further default provision such as a
residuary gift. If a will says “To A, or if A predeceases me to B” and stops
there, it is a fair supposition that the testator would have wished B to take
if A were excluded for a reason other than death. If the will says “To A, or
if A predeceases me to B, and subject to this gift, to C”, one cannot be
sure whether in the circumstances the testator would have preferred to
benefit B or C.
(2) B may be the spouse of A, a relative of A or unrelated. The less the
degree of association between A and B, the less likely it is that the
testator would wish to penalise B, or be worried about the possibility of
benefit to A.
(3) The gift to A or B, and the gift over to C if there is one, may relate to
particular assets or to the whole estate. The probability that the testator
wished the gift to C to take effect seems higher where that gift is
specifically predicated on the failure of the gift to A or B than where it is a
general gift of residue.
4.10 It is true that the likelihood that the testator intended B to benefit if the gift to A
failed for whatever reason is stronger in some permutations of facts than in
others. However, in all of them it seems more likely than not that the testator
favours B over C, and does not wish to make a distinction so that B benefits if A
dies but C benefits if A becomes ineligible for another reason. We conclude that
there should be a “deemed predecease” rule for wills, on the same lines as that
proposed for intestacy. The testator could of course exclude this rule by making
specific provision for the case where the legatee becomes ineligible for a reason
other than death.
4.11 We recommend that where a person forfeits a benefit under a will through
having killed the testator, the will should be applied as if the killer had died
immediately before the testator, unless the will contains a provision to the
contrary.
Special arrangements for minors
4.12 The introduction of a deemed predecease rule may result in forfeited property
being held on trust for children of the killer. This can happen either if the will
contains a default gift for those children or if the special provision in the Wills Act
1837 applies. 85 The same danger of benefit to the killer arises as in intestacy
cases, and a corresponding solution is appropriate.
4.13 We recommend that where a person forfeits a benefit under a will through
having killed the deceased, but as a result of our reforms property devolves
on or is held for a minor descendant of the killer, the court should have
85 Wills Act 1837, s 33; see para 2.22 above.
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