13.3 Personal representatives and interpretation of wills

Question 1

Who are personal representatives and what makes someone an executor?

Answer 1

The persons who administer a deceased individual’s estate (executors or administrators).

An executor is a person appointed by a will or codicil, to administer the estate of the testator, according to the law and provisions of the will.

** executors cannot be a minor or a person who lacks mental capacity - they will not be granted probate. A former spouse will be treated as having died on the date of divorce or annulment.

Question 2

How does someone become an executor of a will?

Answer 2

An express provision should be included in the main body of the will appointing a named executor or more than one if desired. A substitute can be named as well.

Question 3

What happens if someone does not want to be an executor?

Answer 3

They can renounce the role - person named as executor is able to renounce their rights to a grant of probate, provided they have not accepted office.

Question 4

What is the process for renunciation of executorship?

Answer 4

Renunciation of executorship must be in writing, signed by the executor and contain a statement that the person has not intermeddled. Should be signed by a disinterested witness. Filed at the Probate Registry, normally by the PRs who are applying for a grant.

Question 5

How will an executor be confirmed to have accepted office?

Answer 5

This will occur if the executor takes a grant of probate or intermeddles in the estate (does something which shows an intention to accept office). They will then lose their right to renounce.

Question 6

What are some actions of ‘intermeddling with the estate’?

Answer 6

Selling assets of the deceased, paying debts, carrying on a business of the deceased.

Question 7

What are some actions of ‘not intermeddling with the estate’?

Answer 7

Arranging the funeral, insuring the deceased’s assets, gathering and perusing the deceased’s papers.

Question 8

What is meant by an executor having ‘power reserved’?

Answer 8

An executor will not be involved for now but if circumstances change (e.g another executor falls ill, dies or changes their mind), they can apply for a grant of probate at a later stage. No automatic substitution.

Question 9

What is the date from when gifts take effect?

Answer 9

The will being executed immediately before death (rather than at the date of the will)

Question 10

What is the date from when beneficiaries in a will are identified?

Answer 10

Determined as at the date of the will’s execution (subject to class closing rules)

Question 11

What is a specific legacy?

Answer 11

Gift of property forming part of the testator’s estate at death and distinguished in the will from other property of the same kind.

Question 12

What is a general legacy?

Answer 12

Gift of property not distinguished in the will from other property of the same kind. ** Doctrine of ademption does not apply to general legacies.

Question 13

What is a demonstrative legacy?

Answer 13

General legacy payable out of a specific designated fund (such as a bank account).

Question 14

What is a pecuniary legacy?

Answer 14

Gift of money which may be specific, general or demonstrative.

Question 15

What is a residuary legacy?

Answer 15

The residue of an estate is what is left after all debts, liabilities, legacies and other expenses have been paid.

Question 16

What is the doctrine of ademption?

Answer 16

Ademption means that a specific gift will fail (or adeem) if it is no longer part of the testator’s estate, is subject to a binding contract for sale or no longer meets the description in the will.

Question 17

What happens if the substance in the subject matter of a gift changes?

Answer 17

A change in the substance in the subject matter of a specific gift causes that gift to adeem but a mere change in the name or form does not.

Question 18

When does a gift lapse?

Answer 18

If a beneficiary has predeceased the testator, the gift will lapse (fail). The subject matter of the gift falls into the residue.

Question 19

What happens when a residual gift lapses?

Answer 19

If a residual gift lapses, it passes under the rules of intestacy.

Question 20

What are the rules for when a gift is made to A and B jointly?

Answer 20

If A and B both die before testator - gift lapses
If A dies before testator - whole gift passes to B (doctrine of survivorship)

Question 21

What are the rules for when a gift is made to A and B in equal shares?

Answer 21

A dies before testator - A’s share lapses and B takes only one share. Lapsed share falls into residue, or if it is a gift of residue, will pass under the intestacy rules (subject to a substitutional gift being included)

Question 22

What are the rules for a gift to a person by description?

Answer 22

Person fulfills that description at the date the will is executed and so lapses if that person dies.

If a new person fits the description, the will should be republished by a codicil in which case the will is construed as a gift to the new person.

Question 23

What is meant by the law of commorientes?

Answer 23

Where it is impossible to determine who died first out of two or more people, for succession purposes, the younger person survives the elder.

Question 24

What happens to gifts to deceased issue?

Answer 24

If a gift is made to the testator’s child or other issue who dies before the testator and who leaves living issue, the living issue will receive the gift. Includes children who are ‘en ventre sa mere’ - conceived but not yet born.

Unless a contrary intention is shown in the will, the issue will take per stirpes and if more than more in equal shares.

Question 25

What is the definition of ‘per stirpes’?

Answer 25

Through the root. Refers to every person down a family tree beginning from another person.

Question 26

What is the rule behind gifts to witnesses?

Answer 26

Gift in a will fails if the beneficiary or the beneficiary’s spouse or civil partner witnesses the will. The will itself remains valid.

Question 27

What are the exceptions to the failure of gifts to witnesses?

Answer 27

Exception to failure of gifts to witnesses:

1) Gift will not fail if there are at least two other independent witnesses who are not beneficiaries or their spouses or civil partners.

2) A gift can be saved if a codicil to the will is executed by an independent witness.

Question 28

Who can be included in gifts to children?

Answer 28

A gift to someone’s ‘children’ includes illegitimate and adopted children but not stepchildren.

Question 29

Explain what is meant by ‘class gifts’.

Answer 29

Testators often leave property to a class of beneficiaries, such as those who are in a particular relationship to the testator. Sometimes, the members of that class could change after the testator’s death. The law assumes, unless the contrary is known, that the class closes on the testator’s death, where the gift is an immediate one.

Question 30

Explain what is meant by ‘class-closing rules’ and provide two examples.

Answer 30

The law makes assumptions on the date of the class depending on whether the gift is an immediate one, postponed to a later date or conditional.

1) [postponed gift] Where the gift is postponed to until some later date, such as the death of a life tenant, the class closes at that later date.

2) [conditional gift] Where the gift is conditional upon the members of the class reaching a certain age, then the class closes when the first member of the class reaches that age.

** A will may exclude the class-closing rules through a specific provision therein.