What do lawyers mean when they talk about a “gift over” in a Will?

A gift over is a term often used by lawyers when referring to what happens to a testator or Will makers gifts if the testator’s primary beneficiaries will not receive their gift. It is a clause within a Will or trust that provides for the distribution of a gift to an alternative beneficiary when the original beneficiary cannot or does not accept the gift, or if a certain condition stipulated in the Will is not met, or a particular event occurs. For example, if the beneficiary dies before the testator, the gift will then pass to an alternative beneficiary named in the Will or trust. This ensures that the testator’s intentions are fulfilled even if the primary plan cannot be executed.  

The importance of the gift over provision

Gift over provisions are important as they:

1. Ensure intentions are met: The gift over provisions ensures that the testator’s intentions are fulfilled when the primary beneficiary cannot receive the gift.
2. Avoid Intestacy rules:  If a beneficiary predeceases the testator and no alternative beneficiary is named, the gift may have to follow the intestacy rules, which may not be the wishes of the testator.
3. Provide flexibility: They allow the testator to specify alternative beneficiaries and the conditions under which the alternative beneficiaries will receive a gift.

How to Implement Gift Over Provisions

When drafting a Will or trust with gift over provisions, it is important to consider:

• Who will be an alternative beneficiary if the original beneficiary cannot take the gift.
• Any conditions that must be met for the gift over to come into effect.

Estate planning can be complex. We recommend that you speak to someone who specialises in Wills and Estates to ensure that any gift over provisions are properly drafted and enforceable.

Contact us for a free thirty-minute consultation with one of team.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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