When Gifts in a Will Lapse in British Columbia

When you make a will, you choose who should receive your property after you die. But life changes—and sometimes a gift in a will cannot take effect. In British Columbia, this situation is called a lapse (or a “failed gift”), and the Wills, Estates and Succession Act (WESA) sets out what happens next. This guide explains lapses in plain language, including how they affect siblings, descendants, other relatives, and friends, and what you can do to avoid problems.

Under s. 46 WESA, if a gift in a will cannot take effect, the property passes in this order:

1. To any alternate beneficiary named for that gift;
2. If no alternate is named and the original beneficiary was the will‑maker’s brother, sister, or a descendant, the gift goes to that person’s descendants (determined at the will‑maker’s death); and
3. If neither (1) nor (2) applies, the gift falls to the surviving residuary beneficiaries in proportion to their shares (and if there is no residue beneficiary, the estate may be partially intestate and follow the intestacy rules).

This “anti‑lapse” protection is designed to keep gifts inside the family line when the original beneficiary was a sibling or descendant. It does not extend to friends or more distant relations.

For more on the intestacy rules please see this page. 

Siblings (brothers and sisters)

If a gift to your brother or sister cannot take effect—most often because they died before you—WESA directs that gift to your sibling’s descendants (e.g., your nieces and nephews), unless your will clearly says otherwise. This prevents the gift from reverting to the residue or causing an intestacy for that portion.

Descendants (children, grandchildren, and further issue)

If a gift to a child fails, s. 46 again sends the gift to that child’s own descendants (your grandchildren or great‑grandchildren), determined at the date of your death. WESA’s definitions and construction rules in s. 42 inform how terms like “issue” and “descendants” are read, and the statute repeatedly emphasizes that these defaults yield to a contrary intention stated in the will.

Other relatives (e.g., cousins, aunts/uncles, in‑laws)

If the failed gift was to a relative who is not your sibling or descendant, the anti‑lapse rule does not apply. Instead, the gift goes to the residue (the “everything else” clause), shared among your residual beneficiaries in proportion to their interests. If there are no residual beneficiaries or the residue also fails, that portion of the estate is distributed under intestacy rules in Part 3 of WESA.

Friends and non‑relatives

Gifts to friends that cannot take effect typically fall to the residue (or, failing a residual gift, to intestacy). This is why you are advised to name alternates for gifts to friends, or to build protections into your residue clause.

• Beneficiary dies before the will‑maker: The core anti‑lapse rule in s. 46 applies. For siblings and descendants, the gift passes down the beneficiary’s family line; otherwise, it falls to the residue. Note that BC’s “five‑day survival rule” (s. 10) deems a beneficiary who doesn’t survive the will‑maker by five days to have predeceased, which can trigger the lapse rules. Often the survival rule is extended by the will. 
• Beneficiary witnessed the will: A gift to a witness (or their spouse) is presumptively void, but the court has discretion to validate it if satisfied the will‑maker intended the gift (s. 43(4)). If the gift remains void, s. 46’s priorities apply.
• The specific property no longer exists (ademption): If a will leaves “my 2010 Ford truck” but the truck has been sold before death, the gift usually adeems and fails.
• Conditions aren’t met: If the condition fails and no alternate is named, s. 46 determines who takes the property.

• “I left $50,000 to my son, but he died before me and left two children.”
  Unless your will says otherwise, your son’s children take his $50,000 share under s. 46(1)(b).

• “I left my cottage to my sister, who died before me and had one child.”
  Your sister’s child inherits the cottage under the anti‑lapse rule.

• “I left my watch to a close friend who later witnessed my will.”
  That gift is void unless a court validates it under s. 43(4). If it remains void and no alternate is named, it goes to the residue (and then potentially under intestacy if there’s no residuary beneficiary).

• “My will was signed years before WESA—do these rules still apply?”
  WESA applies based primarily on the date of death (with important transitional nuances), so most estates of people who died on or after March 31, 2014 are governed by WESA. If you’re dealing with an older estate, you should get advice on transitional provisions before assuming the current rules apply.

As a Kamloops estate lawyer, I recommend the following to reduce the risk of failed gifts and family disputes:

1. 1. Always name alternates for specific gifts and for the residue. This is the simplest way to avoid uncertainty if a beneficiary dies first.
   2. Use clear class terms where appropriate, and be explicit if you do not want the anti‑lapse rule to apply (“contrary intention”).
   3. Review your will after life events (births, deaths, separations, major purchases/sales) to avoid ademption and stale designations.
   4. Be careful with witnesses—have neutral adults witness your will, and avoid using beneficiaries or their spouses to prevent gifts from being void.

If you’re planning your estate—or administering an estate where a gift may have lapsed—personalized advice is crucial. WESA provides solid default rules, but the best protection is clear drafting that reflects your actual intentions.

AuBuchon Law – Kamloops Estate Lawyer
We help families across Kamloops and the Thompson‑Nicola region update wills, fix risky clauses, and navigate estate administration where gifts have failed.