Tutorial 9
a. The issue is whether Daisy has a right to the new two units of condominium in
Subang Jaya, even though they were not explicitly mentioned in Dell’s will.
- Ademption – specific legacy
- Dell’s will clearly specify that the subject matter and the beneficiary which has
sufficient description as Daisy is entitled to the semi-detached house in PJ so the
house ceases to exist when he sells it.
- The gift will be void and it will fall under the residue legacy
b. (i) Explain the concept of failure of gifts and its significance
- Disclaim
- Section 19 – lapse
- Ademption
- Against public policy
- Satisfaction –
- Abatement – funeral charges, pay lawyer for probate charges, pay off all the debts
(ii) (a) Benjamin predeceased Amelia. He was survived by his wife, Layla and his
stepson, Harry.
- The doctrine of lapse – The general rule is that the donee must survive the testator.
if a beneficiary predeceases the testator, the gift will fail.
- The gift will fall under the residue legacy of deceased as pursuant to Section 10 of
the WA.
- In the case of Re Whorwood, Ogle v Lord Sherborne (1887) 34 Ch D 446, the
testator bequeathed a silver cup to Lord Sherborne who then predeceased the
testator.
- The Court of Appeal held that the gift is null and void. The exception to the
doctrine of lapse is gift to testator’s child in which where a testator makes a gift to
a child/remoter descendant and that descendant predeceases the testator leaving
issue who are living at the testator’s death then their gift will not lapse.
- Section 25 Wills Act states that where any person, being a child/other issue of the
testator, to whom any property shall be devised/bequeathed for any estate or
interest not determinable at or before the death of such person shall die in the
lifetime of the testator leaving issue, and any such issue of such person shall be
living at the time of the death of the testator, such devise or bequest shall not
lapse, but shall take effect as if the death of such person had happened
immediately after the death of the testator.
- Thus, the property will form part of the predeceased child and can be distributed
to his heirs according to Will or intestacy rule.
- The gift is valid, and we have to look into Benjamin’s will. If he dies intestacy, the
gift will fall under residuary legacy.
(b) Sophia, after completing her degree in psychology in 2023, migrated to Almaty,
and worked for an international NGO. Sophia survived Amelia but disclaimed her
gift.
- Sophia disclaim the gift
- goes to residuary legacy
(c) Eve, met with an accident in January 2024 and is currently incapacitated.
- She only have to take care the children until 21
- she has fulfilled the gift as she only got into an accident in 2024 which means
Benjamin and Sophia are over 21
