What is the Doctrine of Election?
The Doctrine of Election is an equitable principle that can be applied to a Will to ensure fairness in the distribution of an estate and to stop beneficiaries from taking advantage of contradictory positions (often inadvertently created by the Testator).
The Doctrine of Election arises when a Will provides a beneficiary with a benefit but imposes a condition that conflicts with their pre-existing rights. Here, the beneficiary must ‘elect’ between accepting the benefit under the Will and giving up their conflicting right or, rejecting the benefit and retaining their pre-existing right.
When does the Doctrine of Election apply?
All three of the following requirements must be met:
- A, leaves a legacy under their Will to B;
- The legacy left to B includes an asset belonging to C; and
- A, also leaves a legacy to C.
Example using the Doctrine of Election
Nic and Conrad own a property (‘The H’) as joint tenants.
Nic’s Will leaves two legacies 1) The H to her daughter Gigi and 2) a cash legacy of £300,000 to Conrad. The residue of her estate is left to her father, Kyle.
On Nic’s death, The H automatically passes to Conrad outside of Nic’s Will, due to survivorship. However, Nic’s Will seeks to gift The H to Gigi (as if survivorship doesn’t apply) but The H really belongs to Conrad.
Nic’s Will states that Gigi is to receive The H. However, due to the joint tenancy, The H belongs to Conrad. Nic’s Will also provides a legacy of £300,000 to Conrad. Therefore, all 3 requirements for the Doctrine of Election are met.
Consequently, Conrad has three choices:
- Disclaim: Conrad can choose not to receive the £300,000 under Nic’s Will. As a result, Conrad keeps The H.
- Elect under the Will: Conrad can choose to follow Nic’s Will, by accepting the £300,000 but giving The H to Gigi.
- Elect against the Will: Conrad can choose to accept the £300,000 and keep The H. The Doctrine of Election requires Conrad to compensate Gigi for the loss of The H. The H is valued at £250,000 at the time of Nic’s death so Gigi would need to be compensated for this amount, by Conrad, from the £300,000 he received. Here, Conrad would end up with The H plus £50,000 in cash.
Conclusions on the Doctrine of Election
The Doctrine of Election highlights the importance of thorough estate planning. For example, to prevent the Doctrine of Election from applying, you could sever a joint tenancy title (to become tenants in common) or find another way for your beneficiaries to benefit.
Next Steps
Its advisable to always seek professional help when preparing a Will. If you’d like help with preparing your Will or with any other estate planning matters, please book an appointment using the link at the top of this page, to speak to one of our advisers.
