2. Wills Establishing Entitlement

Question 1

Rectification

Answer 1

General Rule: The court has limited power to correct (rectify) a will, when the testator’s intentions are clear but the wording of the will does not carry them into effect
- caused by either a clerical error or a failure to understand instructions

Question 2

If words are included in a will by mistake, what can the courts do?

Answer 2

court may allow will to be admitted to probate with those words omitted

Question 3

If a solicitor misunderstands the law when drafting a will / mistakenly uses certain words, can the court rectify the will?

Answer 3

No

Question 4

When is the wording of the will interpretted as taking place?

Answer 4

will is interpreted as if it had been executed immediately before death

Question 5

When would the wording of a will be interpreted as being ‘at the time it was drafted’

Answer 5

If a contrary intention is present in the will, shown by using particular words that refer to the ‘present’ (time the will was drafted) if the reference is essential to the description

Question 6

If a will gifts an asset which is described in generic terms (ie. ‘my shares’) but the quantity changes between drafting and death, what will happen?

Answer 6

The collection at death will comprise the gift

Question 7

If the testator makes a gift to ‘my daughter’ and has one biological daughter and one step-daughter (not-adopted), who will get the gift?

Answer 7

Generally, it will be assumed to be the blood relative UNLESS a contrary provision exists in the will

Question 8

Are adopted children included in the descriptor ‘my children’ for the purpose of a will?

Answer 8

Yes, for the will of their adopted parent
- if child is adopted before their interest in another estate (birth parent) becomes vested, this will not affect the interest

Question 9

A will is made in January 2005 gifting everything to ‘my son’. The son has since transitioned. Are they entitled to the gift?

Answer 9

No (**check this)

Question 10

A will is made in January 2015 gifting everything to ‘my son’. The son has since transitioned. Are they entitled to the gift?

Answer 10

Yes, the child can apply to the high court if trustees do not abide by their wishes
- court can make an order

Question 11

Are terms denoting married spouses (‘husband’) transferrable to civil partners in a will?

Answer 11

No

Question 12

What happens when a gift ‘fails’

Answer 12

Subject matter falls into residuary estate (if gift of residue fails, residual estate passes under intestacy rules)

Question 13

Two examples when a gift would fail

Answer 13

1. Uncertainty
   - impossible to identify
2. Beneficiary witnesses will (or their spouse / civil partner)
   - will is validly executed but gift fails, even if there is substitution

Question 14

Exception to rule that gift fails when uncertain?

Answer 14

EXCEPTION: if the gift is for charity and it does not identify the charity, if it is a valid charitable gift the court can decide which charity is to benefit

Question 15

Exception to rule that gift will fail when beneficiary (or spouse) witnesses will?

Answer 15

• If B is one of three witnesses, gift will not fail because the will was validly executed by the two other witnesses (B’s signature ignored)
• Gift will not fail if there is a codicil (which confirms the original will) and is not witnessed by B or their partner

Question 16

What would happen to the will if the testator divorced their spouse after execution?

Answer 16

Divorced partner treated as if they died on the date of divorce (separation does not count)

Question 17

Ademption

Answer 17

General Rule: A specific legacy will fail if testator no longer owns that property at death (gift is ‘adeemed’)

• Occurs because property is sold / given away / destroyed during testator’s lifetime
• Gift may have changed form (fine) but will be adeemed if there has been a change in substance

Question 18

Exception to the general rule of ademption

Answer 18

If testator sells object but replaces it with a new version, generally viewed as adeemed but s 24 WA may show contrary intention

Question 19

DEF: Codicil

Answer 19

Supplement to a will, can change it in minor ways, must be executed in the same way. Property in existence when codicil was executed that fits description will be taken as being the original property

Question 20

When does a gift ‘lapse’

Answer 20

A gift in a will fails or lapses if the beneficiary dies before the testator. If a legacy lapses, the property falls into residue, unless testator has provided for the possibility of lapse by including a substantial gift

Question 21

If a beneficiary dies shortly after a testator, will their gift lapse?

Answer 21

No, unless there is a survivorship clause (xyz must survivng T by 28 days eg.)

Question 22

What if the testator dies at the same time as the beneficiary? Will the gift fail?

Answer 22

If you can’t figure out the order of deaths, s 184 provides that the older is deemed to have died first

Question 23

When will a gift to more than one person lapse?

Answer 23

1. If both die
2. gift contains words of severance (A and B in equal shares) and A dies
3. If gift is a ‘class gift’ (nieces equally if more than one) no lapse unless all members of class predecease the testator

Question 24

Implied Substitution Provision in s 33 Wills Act 1837

Answer 24

If child (or remoter issue) of testator dies before them, gift will not lapse but pass to the beneficiary’s issue (if more than one in equal shares)

Question 25

DEF: Disclaiming (and effect)

Answer 25

1. Beneficiary says they do not want the gift, they are treated as if hey have died before the testator
2. Falls into residue (or potentially intestacy)
3. Goes to their child / remoter issue

Question 26

If a life tenant receives an income payment from the testator’s estate after death, can they later disclaim the gift?

Answer 26

No, receiving a benefit from a gift constitutes acceptance

Question 27

Can a beneficiary still benefit from a will if they murdered the testator?

Answer 27

No
- but issue can substitute them

Question 28

Can a beneficiary still benefit from a will if they killed the testator (not murder)?

Answer 28

Potentially, court can modify forfeiture rule

Question 29

Can an insane beneficiary still benefit from a will if they unlawfully killed testator?

Answer 29

Potentially yes

Question 30

If a beneficiary kills the testator (not unlawfully), how can they remain a beneficiary under the will

Answer 30

Must apply to the court for relief within 3 months of their conviction