Last Updated on 1st December 2025
Matthew Steele looks at what happens if a beneficiary dies before receiving their inheritance.
When someone who is left a gift in a Will (a ‘beneficiary’) dies before they receive their gift, it is necessary to look at the rules that determine who inherits.
Where a beneficiary dies after the testator but before receiving the gift
Provided the beneficiary is deemed to have died after the person who made the Will (the ‘testator’), then the general rule is that the gift is inherited by that beneficiary’s own estate. The gift is administered in accordance with their own Will, or under their intestacy provisions if they did not leave a Will.
It is important to note that it is not always strictly a case of who died first. It is not unusual for testators to make a gift conditional on whether or not the beneficiary survived them for a set period of time (e.g., 28 days). Depending on how the Will is drafted, if the beneficiary doesn’t meet this condition, the beneficiary may be considered to have died before the testator for the purposes of the Will. This wording is legally effective, so if a beneficiary does not survive for the required amount of time, they will not be considered to have died after the testator.
Where a beneficiary dies before the testator
If a beneficiary is deemed to have died before the testator, then their gift ‘lapses’. This means that the gift fails, and the beneficiary (or, rather, their estate) does not take possession of it. Instead, the gift falls back into the residue of the testator’s estate (i.e., everything left over when all tax, debts and specific gifts have been paid out).
s33 of the Wills Act
However, an exception to this rule is provided under Section 33 of the Wills Act 1837. S33 states that where:
- A beneficiary is deemed to have predeceased the testator; and
- That beneficiary is a child “or remoter descendant” (i.e., grandchild, great-grandchild etc.) of the testator; and
- That beneficiary left their own children alive at the testator’s death; and
- That there is no contrary intention written into the Will;
Then that surviving descendant will inherit the beneficiary’s gift in place of the beneficiary. If there are more than one surviving descendants who meet that criteria, then that gift is shared equally between them.
‘Contrary intention’ is not clearly defined in the Wills Act. It clearly includes a clause in a Will that specifically excludes s33, but the courts have also accepted that contrary intention can be implied from the rest of the wording in the Will. Determining what happens if a beneficiary dies and whether or not Section 33 takes effect is likely to need a specialist lawyer’s input.