Glossary entry (derived from question below)
English term or phrase:
fail in their entirety
English answer:
be prevented from taking effect by a legal impediment
Added to glossary by
Charles Davis
Mar 20, 2016 19:54
8 yrs ago
2 viewers *
English term
fail in thier entirety
English
Law/Patents
Law (general)
Last will and testament
fragment concerning distribution of residuary estate (several people involved inheriting equial shares)
If any of the share or shares under this clause shall fail in their entirety that share or those shares shall be added proportionally to the other shares that have not failed (and this provision shall apply to both an original share and an augmented share).
What does "fail" mean here? - that it was not possible to distribute the estate in equal parts?
Thank you
If any of the share or shares under this clause shall fail in their entirety that share or those shares shall be added proportionally to the other shares that have not failed (and this provision shall apply to both an original share and an augmented share).
What does "fail" mean here? - that it was not possible to distribute the estate in equal parts?
Thank you
Change log
Apr 3, 2016 08:51: Charles Davis Created KOG entry
Responses
+4
13 hrs
Selected
be prevented from taking effect by a legal impediment
"In their entirety", logically, means "not only in part", and must mean that no part of a particular share or shares can be paid to the intended beneficiary.
"Fail", applied to a whole will or to a particular bequest or bequests in a will, means being unable to be put into effect. In the case of a whole will this will usually be because the will was not properly executed (there are many possible reasons why this might be the case). In the case of a particular bequest, including, as in this case, a share in the residuary estate, the most common reason will be because the beneficiary predeceases the testator. There are other possible reasons. There could be a fault in the way the bequest is formulated in the will, for example; the beneficiary may not be properly identified. Another possible reason is that the beneficiary in question, or his or her spouse, acts as a witness of the will; this is not allowed (at least in the UK, under the Wills Act 1837). Further examples of failure of bequests can be specific bequests, when a specific piece of property is bequeathed but turns out to have been sold before the testator dies, and contingent or conditional bequests, where the beneficiary has failed to fulfil the condition.
The point of including this provision is that the desired result may not happen by default; if one of the residuary bequests fails, that share may not automatically be divided among the remaining residuary beneficiaries. In the absence of further provision, the result will be partial intestacy in respect of that share, which will be dealt with according to intestacy laws. This may not produce the desired result.
For further information, see, for example:
http://www.rainulegalconsultants.com/why-some-wills-fail-2/
http://www.makingawill.org.uk/text-types-of-gift-page-134.ht...
https://books.google.es/books?id=Bj6P_lFwe-gC&pg=PA75&lpg=PA...
http://thechildrensfoundation.ca/?page_id=172
"Fail", applied to a whole will or to a particular bequest or bequests in a will, means being unable to be put into effect. In the case of a whole will this will usually be because the will was not properly executed (there are many possible reasons why this might be the case). In the case of a particular bequest, including, as in this case, a share in the residuary estate, the most common reason will be because the beneficiary predeceases the testator. There are other possible reasons. There could be a fault in the way the bequest is formulated in the will, for example; the beneficiary may not be properly identified. Another possible reason is that the beneficiary in question, or his or her spouse, acts as a witness of the will; this is not allowed (at least in the UK, under the Wills Act 1837). Further examples of failure of bequests can be specific bequests, when a specific piece of property is bequeathed but turns out to have been sold before the testator dies, and contingent or conditional bequests, where the beneficiary has failed to fulfil the condition.
The point of including this provision is that the desired result may not happen by default; if one of the residuary bequests fails, that share may not automatically be divided among the remaining residuary beneficiaries. In the absence of further provision, the result will be partial intestacy in respect of that share, which will be dealt with according to intestacy laws. This may not produce the desired result.
For further information, see, for example:
http://www.rainulegalconsultants.com/why-some-wills-fail-2/
http://www.makingawill.org.uk/text-types-of-gift-page-134.ht...
https://books.google.es/books?id=Bj6P_lFwe-gC&pg=PA75&lpg=PA...
http://thechildrensfoundation.ca/?page_id=172
Peer comment(s):
agree |
B D Finch
34 mins
|
Thanks
|
|
agree |
AllegroTrans
3 hrs
|
Thanks, AT
|
|
agree |
acetran
4 hrs
|
Thanks, acetran
|
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agree |
crossroad
3 days 4 hrs
|
Thanks, crossroad
|
4 KudoZ points awarded for this answer.
Comment: "Selected automatically based on peer agreement."
Discussion
Here are a couple of relevant sources. They refer to the UK, but I think the same issues probably apply to US wills as well:
http://www.rainulegalconsultants.com/why-some-wills-fail-2/
http://www.makingawill.org.uk/text-types-of-gift-page-134.ht...
I leave it to you to post an answer if you wish to, Tony.