Author: John Smart (2002)

WHEN DOES STATUTORY SUBSTITUTION OF ISSUE TAKE PLACE?

John Smart considers a recent case, Ling v Ling where the Court has to consider
the application of s.32(2) Wills Act 1 837
(taken from Issue No 19  – April 2002

Introduction
Readers of the TACT Review will be well aware of the doctrine of lapse, whereby the general rule is that a devise or bequest fails where a beneficiary predeceases the testator. It will be recalled that the doctrine does not apply to where there is a gift to a class (i.e. to a class of persons included or comprehended under some general description and bearing a certain relation to the testator or some other person) or where a gift is construed as being to persons as joint tenants. There is a further exception of somewhat uncertain ambit for what are sometimes described as ‘gifts in discharge of a moral obligation’ – in one case a direction to pay a statute-barred debt was upheld¹ – but it is doubtful whether there is a general rule that gifts in discharge of moral obligations are exempt from the doctrine of lapse.