2. Wills: Interpretation, Alteration and Revocation Flashcards
What is the purpose of court interpretation in wills?
To establish the testator’s intentions.
What is the presumption regarding the meaning of non-technical words in a will?
They are given their ordinary meaning.
What is the presumption regarding the meaning of technical words in a will?
They are given their technical meaning.
When can the presumption regarding the meaning of words in a will be rebutted?
When the will clearly shows that the testator intended to use a word in a different sense.
What factors does the court consider in interpreting a will?
Ordinary meaning, context, and common sense.
When will the court consider external evidence in interpreting a will?
When the wording is meaningless, ambiguous, or unclear in the will or in the light of surrounding circumstances.
What is the aim of rectification in relation to a will?
To rectify the will to carry out the testator’s intentions when the wording does not effectively do so.
What are the two situations in which a will may fail to carry out the testator’s intentions?
Due to a clerical error or a failure to understand instructions.
What is considered a clerical error in relation to a will?
An error of a clerical nature, such as writing or omitting something by mistake.
What is the scope of Section 20 AJA in relation to rectification of a will?
It is very narrow and does not apply to misunderstandings of the law or issues of the testator’s knowledge and approval.
What is the basic rule regarding the determination of assets passing under a will?
Assets are determined according to those in existence at the date of death.
When does a will ‘speak from the date of death’?
Unless a contrary intention appears in the will.
What are examples of words that indicate a contrary intention in a will?
Words that refer to the ‘present’, to a specific asset, or to a generic collection of assets.
What does it mean when a will states ‘the house I now own’?
It refers to the house the testator currently owns.
What does it mean when a will states ‘my car’?
It refers to the car the testator owned at the date of the will.
What does a generic will state?
Collection of cars at date of death.
How are beneficiaries identified in a will?
By name or description.
What is the general rule for beneficiaries in a will?
Alive at the time of execution.
What happens if a beneficiary is named but predeceased the testator?
Doctrine of lapse applies.
How is family described in a will?
By their relationship to the testator.
What is a class of beneficiaries?
Group fulfilling a description, e.g. ‘my children’.
When does a class close for new beneficiaries?
When the first beneficiary in the class obtains a vested interest.
Who are included in gifts referring to blood relationships?
Stepchildren are not included unless contrary intention.
What is the meaning of ‘issue’ in relation to children?
Direct descendants of any generation, including adopted children.
Can children born from extra-marital affairs benefit from gifts?
Yes, unless contrary intention in the will.
Who is included in the term ‘my children’?
Children of whom the testator is a legal parent under the HFE Act.
Are ‘husband’ and ‘wife’ synonymous with ‘civil partner’?
No, a gift to a wife will fail if the testator enters a civil partnership instead.
What is the Gender Recognition Act 2004?
Legally recognizes individuals who obtained a full gender recognition certificate.
What is the effect of acquired gender on property disposal under a will made before April 4, 2005?
Acquired gender does not affect disposal of property.
What can be done if the disposition made after the appointed day is different due to gender reassignment?
An application can be made to the High Court for defeated expectations.
What happens when individual gifts fail in a will?
Subject matter falls into the residuary and is taken by the beneficiary, unless there is a substitution clause.
What happens in the residuary effect of a failing gift?
There is partial intestacy and the residuary estate passes under the intestacy rules, unless there is a substitution clause.
What is the circumstance of a failing gift due to uncertainty?
It is not possible to identify the subject matter from the wording.
What is the exception for a gift of exclusive charitable purposes?
The court has discretion as to which charity will benefit.
What happens if a beneficiary or their spouse/civil partner witness the will?
The gift to the beneficiary fails, but the will is validly executed as they remain a competent witness.
What is the exception for valid execution if the beneficiary’s signature is ignored?
A codicil confirming the original will.
What happens to the interest of an ex-spouse in case of divorce or dissolution?
The interest passes as if they had died, separation is not sufficient.
What is ademption?
Ademption is when a gift is adeemed if the property is sold, given away, or destroyed during the testator’s lifetime.
What is an example of ademption through change in substance?
Changing shares to holding in a company.
What is an example of ademption through substituted items?
Swapping ‘my car’ for a new car after the will is made.
When does a gift not adeem if the property is capable of increase or decrease?
Shares and jewellery.
What can republish a will to account for replacement property?
A codicil.
What happens if a beneficiary dies before the testator?
The gift lapses and will pass under intestacy, unless there is a substitution gift available.
What is the purpose of revocations?
To cancel or withdraw a will.
What is the effect of nullifying the will?
Nullify the will in whole or part.
What is the rule regarding revoking a will?
Testator can revoke will if they have capacity.
What is the capacity test for revoking a will?
Bank v Goodfellow test.
How can a will be revoked by a later will or codicil?
By a declaration in a later will or codicil.
What is the presumption regarding revoking a will by a later will or codicil?
No express revocation clause revokes earlier will or codicil.
What is conditional revocation?
Revocation may be conditional upon a particular event.
How many witnesses are required for a will or codicil?
Two witnesses.
How can a will be revoked by destruction?
By destruction by the testator or another in their presence and by their directions.
Is accidental destruction sufficient to revoke a will?
No, intention to revoke must be present.
What is the test for partial destruction of a will?
Whether the remainder is intelligible and operable.
What happens if a will is destroyed but not revoked?
May obtain order allowing admission to probate as a valid will.
How does marriage or civil partnership affect a will?
Automatically revokes the will.
What is the exception to revoking a will by marriage or civil partnership?
If will recites expected marriage + no intention for the will to be revoked.
What happens if the expected marriage never takes place?
The will is still effective unless conditional on marriage.
What happens if the testator marries another person other than the one specified?
The will is revoked.
Does conversion from civil partnership to marriage affect a will?
No, it does not revoke the will or affect dispositions.
What are mutual wills?
Agreement not to revoke wills, breach if revoked.
What is the general rule regarding identical wills?
Likely intended to be mutual, not mirror wills.
What is required for mirror wills?
Strong evidence of intent.
Are mutual wills revocable?
Yes, unless unconscionable for one party to go back on their promise.
What does the doctrine of mutual wills do?
Imposes a constructive trust on survivor’s estate to protect beneficiaries.
Does the agreement on mutual wills restrict the use of property?
No, it only specifies not to revoke the wills.
What must the survivor of mutual wills not do?
Make dispositions during lifetime intending to defeat the agreement.
How can mutual wills be revoked?
By mutual decision, unilateral revocation is valid but amounts to breach.
What are codicils?
Additions, amendments, or revocations in part to a will.
How are codicils executed?
As a document that supplements an existing will.
What does republication of a will do?
Re-publishes the will at the date of execution and can perfect imperfect formalities.
How can a will be revived?
Through re-execution or a codicil with express intention to revive.
What should a testator provide when making a codicil?
A letter explaining the reason for the codicil.
What is the general rule regarding alterations made after execution?
They are invalid and unenforceable unless attested or an exception.
What is the presumption regarding alterations made after execution?
They are presumed to be made after execution unless proven otherwise.
What are attested alterations?
Changes made to a will that must be signed and witnessed.
What is obliteration?
A valid alteration if the original text is illegible.
What is interlineation?
Adding something previously omitted in a will.
What are other alterations?
Striking through text and adding at the end of the will.
What is a clerical error?
An error made by a solicitor or in writing or omitting something by mistake.
When is a strike through valid?
When it is an error of a clerical nature.
What makes an alteration invalid?
If the original wording is optically apparent without additional evidence or interference.
What happens if the original wording is optically apparent?
The will stands and no alteration is needed.
What is the exception to contingent obliterations?
If the condition is not met, the court will use any and all methods to establish the original words.
What is the purpose of the opening section of a will?
To identify the testator and the nature of the document.
What should be stated in the opening section of a will?
The full name and address of the testator.
When is a will dated?
At the time of execution, either at the opening or end of the will.
What should be stated regarding intention to marry in a will?
The testator should state any future intentions and whether marriage should revoke the will.
What is the purpose of the revocation clause?
To indicate that all earlier wills and codicils are revoked.
Who are appointed in the appointments section of a will?
Executors and trustees.
When are trustees appointed in a will?
If the testator created an express trust of the estate.
What can executors and trustees do?
They can administer the estate and hold the remainder of the trust.
How many executors are required?
At least 2, but there is no maximum.
What is the recommended number of executors?
4, as that is the maximum to apply for grant of probate to the same assets.
Who can be chosen as an executor?
Non-professional individuals, solicitors, other professionals, banks, or trust corporations.
What are charging provisions?
Provisions that allow a fiduciary to charge for their services.
Who can benefit from charging provisions?
Sole executor/trustee with an express charging clause.
What are the advantages of appointing non-professional individuals as fiduciaries?
Familiarity with the testator, unlikely to charge for time spent, only solicitor costs paid.
What are the advantages of appointing solicitors or other professionals as fiduciaries?
Necessary expertise, firm will not die or retire.
What are the disadvantages of appointing solicitors or other professionals as fiduciaries?
Costs for expenses incurred and time spent doing the work.
What type of partnership should be appointed as fiduciaries?
General partnership (not LLP) with at least two partners.
What changes should be indicated in the appointment of fiduciaries?
Possible changes of name, business mediums between date of will and death.
What are the advantages of appointing banks or other trust corporations as fiduciaries?
Financial and legal expertise, corporation will not die or retire.
What are the disadvantages of appointing banks or other trust corporations as fiduciaries?
Large and impersonal to the family, charging methods based on percentage of estate value.
What type of trustees can be reasonably remunerated for their time spent on work?
Trust corporations or trustees acting in a professional capacity.
When should a guardian be appointed?
If the testator has infant children, to care for them after the death of both parents.
What are non-residuary gifts?
Gifts that are not part of the residue of the estate.
What are pecuniary legacies?
Gifts of money.
What are specific legacies?
Gifts of specific assets.
What is a specific legacy?
A gift of personalty (e.g. a watch).
What is a specific devise?
A gift of land (e.g. a house).
What information is necessary to identify a beneficiary?
Name, address, and relationship to the testator.
What is the difference between vested and contingent gifts?
Vested gifts are made outright, while contingent gifts depend on a condition.
What happens if a predeceased beneficiary is named in a legacy?
They do not take the legacy, and the gift passes with the residue unless there is an express substitutional beneficiary or the gift is stated otherwise.
What is the purpose of accurate identification in charities?
To provide the address and registered charity number.
What is the requirement to authorize executors in charities?
To accept receipt of an authorized office of the charity or sufficient equivalent.
What should be indicated in relation to changes in charities?
Any changes should be clearly indicated.
What is the burden of IHT?
If the estate is large enough, IHT will be payable on the estate value.
What is the general rule for IHT on individual legacies?
IHT on individual legacies is paid out of the residuary estate.
What is the exception to the general rule for IHT on individual legacies?
A will can displace the general rule by exhibiting a contrary intention.
Who bears the costs of packing or transporting a specific gift?
The beneficiary bears the costs, unless it is stated that costs will be paid from the residue of the estate.
Who bears the burden of mortgage charges on a specific devise of land?
The beneficiary bears the burden, unless the devise is expressed as ‘free of mortgage’, in which case the debt will be paid from the residue.
What is the purpose of a gift of residue?
To express the direction for the payment of all debts, expenses, and legacies from the residue before it is distributed to the beneficiaries.
What types of express trusts are common in family wills?
Contingent and discretionary trusts, and trusts with successive interests.
What is the purpose of avoiding partial intestacy?
To provide express substitutional gifts to cover the possibility of the primary gift failing.
Who is usually the longstop beneficiary in case all arrangements fail?
A charity is usually the longstop beneficiary.
What should be omitted in the identification of beneficiaries in residue?
Names and specific shares should be omitted, only referring to them in generic terms (e.g., ‘my children’).
What is the rule for survivorship clauses?
Unless stated otherwise, a beneficiary only needs to be alive at the death of the testator to acquire a vested interest.
Can a survivorship period apply to all gifts in a will?
Yes, a survivorship period can apply to all gifts in a will, requiring the beneficiary to survive the testator’s death by 28 days.
What do administrative provisions in a will cover?
Administrative provisions cover various practical matters related to the execution and administration of the will.
What is a power to charge?
Executor and trustees’ power to charge remuneration.
Why is it important to be clear about the profession involved in administering estates and trusts when charging?
To avoid someone of any profession charging, like a doctor.
What is the extended power to appropriate assets without consent of legatee?
Section 41 AEA gives PRs power to appropriate assets in the estate in or towards satisfaction of any legacy or any interest in residue.
What is the requirement for PRs to obtain formal consent for appropriation?
The legatee (or parent or guardian of legatee) must consent to the appropriation.
What happens if an executor appropriates assets for their own beneficial interest?
It would amount to a breach of fiduciary duty.
What is the power to insure assets?
PRs have a duty to preserve the value of the estate and insure assets against all risks.
Who can give a good receipt for a legacy or share of the estate on behalf of infants?
Parents and guardians can give a good receipt to PRs on the infant’s behalf.
What is self-dealing?
Entering into any transaction where the duties and personal self-interest of PRs and trustees conflict.
What is the power to appropriate assets for trustees?
Necessary to include an expression provision as section 41 does not apply to trustees.
What is the duty of trustees when it comes to investing?
Trustees have a duty to invest, take proper advice, and review investments from time to time.
What is the exception to the duty to invest for trustees?
Investments in land, other than by mortgage or purchase by section 8.
What is the power to purchase land?
A power for trustees to purchase land for the trust.
What powers do trustees have in relation to acquiring land?
Trustees can acquire freehold or leasehold land in the UK for investment, occupation by a beneficiary, or any other reason.
What powers do trustees have in relation to selling land?
Trustees holding land in their trust have the power to sell it under their powers of an absolute owner.
What restrictions are there on trustees acquiring land?
Trustees cannot acquire land abroad or an interest in land with another, unless stated otherwise by express terms.
What can income from a trust fund be used for in relation to minors?
Income received from the fund can be used for a minor’s maintenance, education, or benefit.
What is the duty of trustees in relation to future income received by beneficiaries aged 18 or over?
Trustees have a duty to pay future income received from a beneficiary’s share of the fund to them, unless the will expresses postponing the right to benefit until a greater age.
What does Section 32 of the Trustee Act 1925 allow trustees to do?
Section 32 allows trustees in certain circumstances to give a beneficiary a payment of trust capital sooner than they would receive it under the basic provisions of the trust.
Who does Section 32 of the Trustee Act 1925 apply to?
Section 32 applies only to beneficiaries who have an interest in trust capital.
Can beneficiaries compel trustees to make an advancement of trust capital?
No, beneficiaries cannot compel trustees to make an advancement as Section 32 gives absolute discretion to trustees.
What is the scope of advancements of a beneficiary’s share of capital in will trusts created on or after 1 October 2014?
Trustees can make an advancement of the whole of a beneficiary’s share of capital.
What is the scope of advancements of a beneficiary’s share of capital in will trusts created before 1 October 2014?
Trustees are restricted to making an advancement of only one half of a beneficiary’s share of capital.
Is it common to extend Section 32 of the Trustee Act 1925 to permit advancements of capital to the life tenant in a life interest trust?
Yes, it is common to extend Section 32 to permit advancements of capital to the life tenant.
What are the requirements for beneficiaries to control trustees?
Beneficiaries must be sui juris (aged 18 or more with full capacity) and together entitled to the whole fund.
What power do beneficiaries have in relation to trustees?
Beneficiaries can direct the trustees to end the trust, retire, and appoint new trustees of their own choice.
What are trusts of land?
Trusts of land involve the holding of land by trustees for the benefit of beneficiaries.
What is the power of trustees in relation to acquiring land for trusts of land?
Trustees can acquire freehold or leasehold land in the UK for investment, occupation by a beneficiary, or any other reason.
What is the power of trustees in relation to selling land for trusts of land?
Trustees holding land in a trust of land have the power to sell it under their powers of an absolute owner.
What restrictions are there on trustees acquiring land for trusts of land?
Trustees cannot acquire land abroad or an interest in land with another, unless stated otherwise by express terms.
What can income from a trust fund be used for in relation to minors in trusts of land?
Income received from the fund can be used for a minor’s maintenance, education, or benefit.
What is the duty of trustees in relation to future income received by beneficiaries aged 18 or over in trusts of land?
Trustees have a duty to pay future income received from a beneficiary’s share of the fund to them, unless the will expresses postponing the right to benefit until a greater age.
What does Section 32 of the Trustee Act 1925 allow trustees to do in relation to trusts of land?
Section 32 allows trustees in certain circumstances to give a beneficiary a payment of trust capital sooner than they would receive it under the basic provisions of the trust.
Duty to consult beneficiaries
Must consult beneficiaries before exercising functions.
Beneficiary’s rights of occupation
Beneficiary with interest in possession has right to occupy land.
Power to carry on the testator’s business
PRs can run the business as a going concern.
Business medium
Sole trader (unincorporated) included in estate.
Scope of running the business
Limited to assets employed in the business at death.
Attestation clause
Wills should contain a clause confirming due execution.
Purpose of attestation clause
Raises a presumption of due execution.
Execution formalities
Testator and witnesses must sign in each other’s presence.
Professional Conduct
Only act on client’s instructions or authorized person’s instructions.
Gifts to solicitor drafting will
Do not act if there is a conflict of interest.
Solicitor as executor
Act in the best interest of the client.
Consulting beneficiaries
Consult beneficiaries before taking any actions.
Beneficiary’s right to occupy
Beneficiary with interest in possession can occupy land.
Limitations on running the business
Can only use assets employed in the business at death.
Requirements for attestation clause
Clause confirming compliance with execution formalities.
Presumption of due execution
Attestation clause raises this presumption.
Execution formalities for wills
Testator and witnesses must sign in each other’s presence.
Professional conduct for solicitors
Act only on client’s or authorized person’s instructions.
Restrictions on gifts to solicitor drafting will
No acting if there is a conflict of interest.
