Promise or Gift Before Death

Each person’s circumstances are different and therefore the choice as to whether an individual chooses to share their Will with family members, or close friends, is theirs.

Before the Grant of Probate is issued, only the executors named in the Will are entitled to read the Will. An executor may decide to send a copy of the Will to family members or close friends and allow them to read its contents, and usually, there is little reason not to disclose the contents of a Will. However an executor does not have to do this. No other person (including a beneficiary) has a legal right to see a copy of the Will.

After the Grant of Probate has been issued, the Will becomes a public document. The Gov.uk website allows any individual to search for and purchase a copy of a probate record (a Will or Grant of Probate).

If an individual has passed away within the last six months and a Grant of Probate has not yet been extracted, a ‘standing search’ can be made. A standing search allows an individual to lodge their request for a copy of the Grant of Probate before it has been extracted. Instead of regularly searching the online records (as above), the Probate Registry will send a copy of the probate records once they are available.

A gift left in a Will is called a legacy. If you want to leave a particular gift or item to someone then this is called a specific legacy. A bequest describes the act of leaving a gift to a loved one through a Will.

A Will can list personal possessions, property, specific bank accounts or investments, and state who will receive these. These are specific legacies. A Will may also list set amounts of money that the testator wants to leave to different individuals or charities. These are pecuniary legacies.

There are different ways to leave a gift in your Will.

Residuary

A residuary gift is a share of your estate – a percentage or the whole of an estate left over after making specified legacies and any liabilities taxes or costs have been paid

Pecuniary

A pecuniary gift is a fixed amount of money, for example £1000 to my niece.

Specific

These are particular items, such as jewellery, paintings, items of personal importance, as well as stocks and shares.

Trusts

A Will trust is an arrangement which comes into effect on your death, granting the named trustees control over assets on behalf of others – the ‘beneficiaries’.

A beneficiary might be:

• A named individual
• A class of people, such as “my grandchildren and their descendants”
• A charity, or a number of charities
• Any other organisation, such a as a company or sports club

If you think you would like to create a trust in your will we recommend speaking to your solicitor.

If the beneficiary of a gift dies before the testator, the gift will fail. In these circumstances, the general rule is that the gift falls into the residue and does not form part of the beneficiary's estate.

A specific bequest fails if the property is no longer in the estate at the time of the testator's death. For example I leave my home to my son and I no longer have the property when I die.

A gift may also fail if the beneficiary is not properly identified.

A gift may fail for uncertainty if the property cannot be identified from the description in the Will.

The gift is part of the Will so can not be overwritten.

In rare cases, a deathbed gift can overrule the instructions left in a Will. This means if you're a beneficiary of an estate, your share could be reduced because of a deathbed gift to someone else. Because they're made at a very sensitive time, deathbed gifts have to meet several conditions in order to be valid.

You may be able to challenge a lifetime gift if the donor did not have the mental capacity required to make the gift. See more here.