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.
