1.5 Wills - Interpretation Flashcards
What is required for T’s instructions?
Clearly identify
- Bens
- Property
If T’s intent NOT clear (drafted imprecisely/mistakes) => Rectify by either;
- Court interpretation > Interpret wills in documentary/factual/commercial context [Marley v Rawlings]
- Extrinsic evidence > Meaningless will/Ambiguous language
What are the types of gifts?
Pecuniary gifts
- NO direction re payment method
- General (‘gift to X’)
- Specific (‘…which I keep in my safe’)
- Demonstrative (‘….from X account’)
General legacy
- NOT distinguished
- NO ademption
- Part/NOT part of estate
Demonstrative legacy
- Specific source of payment
- NO ademption (account closed during T’s lifetime/account has NO sufficient balance)
Specific legacy
- Distinguished
- Ademption (gift NOT owned by T (date of death)/gift substantially changed) => Fails
Residue
- After expenses/legacies paid out
- Rest of property NOT disposed
What is the difference between devise and legacy/bequest?
Devise
- Realty (gift of land)
Legacy/Bequest
- Personalty (gift of chattels)
What happens if a gift fails?
Substitute gift > Takes over
Gift becomes residuary gift
- If it fails => Property exists as NOT disposed by will => Passes according to intestacy rules
How may gifts fail due to uncertainty?
Uncertainty
- Intention (meaning of words used)
- Subject matter (assets placed into trust)
- Objects (assets held for Bens)
UNLESS
- Statutory presumption
- Specific rules of construction > Identify Bens
How may gifts fail due to ademption?
Gift > At T’s death
- Destroyed
- Lost
- Lawfully changed hands
- NOT owned
UNLESS
- Court interpretation > General/Demonstrative (NOT specific) gift
- Disposed w/o authority
- Property NOT changed in substance
- T drafted gift > Avoid ademption
What is required for abatement?
Executors apply assets towards paying off Estate’s expenses/debts/liabilities
1) General legacy
2) Specific legacy
- NOT demonstrative legacy
What is the rule for simultaneous death?
1) T dies + SPECIFIC gift destroyed
2) NOT certain which destroyed/died first
=> Gift adeems
What is the rule for lapse?
If RESIDUARY Ben dies before T;
- Ben treated as predeceased
- Gift => Residue
UNLESS substituted gift in will
- Class gift => Class (UNLESS ALL members predeceased T)
- Joint tenancy > Surviving JT takes predeceased JT’s share (right of survivorship) (UNLESS ALL JTs predeceased)
- Tenancy in common (equal shares) > Predeceased JT’s heirs takes predeceased JT’s share
- Commorientes > Younger presumed died after Elder died (UNLESS survivorship clause included)
- Statutory substitution (s. 3 Wills Act 1837) > Predeceased Ben’s surviving Issues take (equal shares)
How may an illegal gift fail?
Illegal/Immoral purpose
Contrary to public policy
How may a witnessed will fail a gift?
Witness of will
- Ben
- Ben’s spouse/partner
UNLESS
- +2 Ws (NOT Bens/Spouse)
- Will confirmed by codicil/later will
What is the rule under ‘Lassence v Tierney’?
If gift appears absolute + direction to hold as trust;
- Gift held on trust (if effective)
- Otherwise > Absolute gift (exclude residuary legatee + next of kin)
- Otherwise > Part of Donor’s estate as Resulting trust
How may personalty/real property pass if there are no words of limitation?
Absolute interest
- UNLESS contrary interest
Who takes the gift between the spouse/civil partner and issue?
Spouse/Civil partner (presumed - rebuttable)
What is Donatio Mortis Causa?
Gift made in contemplation of Donor’s death
- If Donee predeceases Donor => Gift fails
- Subject to abatement/ademption
- NO probate (DMC takes effect from delivery)
