2. Wills Establishing Entitlement Flashcards
Rectification
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
If words are included in a will by mistake, what can the courts do?
court may allow will to be admitted to probate with those words omitted
If a solicitor misunderstands the law when drafting a will / mistakenly uses certain words, can the court rectify the will?
No
When is the wording of the will interpretted as taking place?
will is interpreted as if it had been executed immediately before death
When would the wording of a will be interpreted as being ‘at the time it was drafted’
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
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?
The collection at death will comprise the gift
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?
Generally, it will be assumed to be the blood relative UNLESS a contrary provision exists in the will
Are adopted children included in the descriptor ‘my children’ for the purpose of a will?
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
A will is made in January 2005 gifting everything to ‘my son’. The son has since transitioned. Are they entitled to the gift?
No (**check this)
A will is made in January 2015 gifting everything to ‘my son’. The son has since transitioned. Are they entitled to the gift?
Yes, the child can apply to the high court if trustees do not abide by their wishes
- court can make an order
Are terms denoting married spouses (‘husband’) transferrable to civil partners in a will?
No
What happens when a gift ‘fails’
Subject matter falls into residuary estate (if gift of residue fails, residual estate passes under intestacy rules)
Two examples when a gift would fail
- Uncertainty
- impossible to identify - Beneficiary witnesses will (or their spouse / civil partner)
- will is validly executed but gift fails, even if there is substitution
Exception to rule that gift fails when uncertain?
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
Exception to rule that gift will fail when beneficiary (or spouse) witnesses will?
- 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
What would happen to the will if the testator divorced their spouse after execution?
Divorced partner treated as if they died on the date of divorce (separation does not count)
Ademption
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
Exception to the general rule of ademption
If testator sells object but replaces it with a new version, generally viewed as adeemed but s 24 WA may show contrary intention
DEF: Codicil
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
When does a gift ‘lapse’
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
If a beneficiary dies shortly after a testator, will their gift lapse?
No, unless there is a survivorship clause (xyz must survivng T by 28 days eg.)
What if the testator dies at the same time as the beneficiary? Will the gift fail?
If you can’t figure out the order of deaths, s 184 provides that the older is deemed to have died first
When will a gift to more than one person lapse?
- If both die
- gift contains words of severance (A and B in equal shares) and A dies
- If gift is a ‘class gift’ (nieces equally if more than one) no lapse unless all members of class predecease the testator
Implied Substitution Provision in s 33 Wills Act 1837
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)
DEF: Disclaiming (and effect)
- Beneficiary says they do not want the gift, they are treated as if hey have died before the testator
- Falls into residue (or potentially intestacy)
- Goes to their child / remoter issue
If a life tenant receives an income payment from the testator’s estate after death, can they later disclaim the gift?
No, receiving a benefit from a gift constitutes acceptance
Can a beneficiary still benefit from a will if they murdered the testator?
No
- but issue can substitute them
Can a beneficiary still benefit from a will if they killed the testator (not murder)?
Potentially, court can modify forfeiture rule
Can an insane beneficiary still benefit from a will if they unlawfully killed testator?
Potentially yes
If a beneficiary kills the testator (not unlawfully), how can they remain a beneficiary under the will
Must apply to the court for relief within 3 months of their conviction
