2. Wills: interpretation, alteration and revocation

Question 1

How are assets determined under the will?

Answer 1

According to those in existence at date of death

Question 2

What is rectification?

Answer 2

The courts powers under s 20 Administration of Justice Act 1982 to rectify a will where the testator’s intentions are clear but the wording of the will does not carry them into effect

Question 3

When does the ability to rectify arise?

Answer 3

Where the will fails to carry out the testator’s intentions and that failure has one of two causes = clerical error or failure to understand instructions

S 20 very narrow - not possible to rectify a will because the solicitor who wrote the will misunderstood the law or thought that the words chosen achieved the desired outcome

Question 4

When is the will said to “speak from”?

Answer 4

The date of death unless a contrary intention appears in the will

Question 5

What is the implication of the use of “my” when referring to a specific asset?

Answer 5

Taken as meaning that asset owned at the date of the will

If an asset which is capable of increase or decrease between date of will and death (e.g. my collection of cars) then taken to mean the cars in the collection at the date of death

Question 6

What is the general rule regarding how beneficiaries are construed?

Answer 6

As they were at the time of execution of the will

Question 7

What is the impact of the Gender Recognition Act 2004?

Answer 7

An individual who has obtained a full gender
recognition certificate from the Gender Recognition Panel is legally recognised in their
acquired gender - only for wills written post 4 April 2005

Question 8

What are the ways in which a gift can fail?

Answer 8

• Uncertainty
• Beneficiary witnesses will
• Divorce or dissolution
• Ademption
• Lapse

Question 9

What is ademption?

Answer 9

When testator no longer owns the property gifted in the will at death

Question 10

What does ademption apply to?

Answer 10

Specific gifts only

E.g. if a general gift “e.g. general shares in a company” then if the testator does not own the asset at the date of death the personal representative must purchase the asset using funds from the estate

Question 11

What is the basic rule when a gift lapses?

Answer 11

If beneficiary dies before testator, gift passes back to residuary

Question 12

What is the purpose of s 184 LPA 1925?

Answer 12

If death of testator and beneficiary occurred very close together it must be established who died first - if order cannot be proved then s 184 provides the elder is deemed to have died first

Question 13

What is the difference between a gift passing to two people “jointly” versus passing to two people “in equal shares”?

Answer 13

If passes jointly, and one dies before testator, whole gift passes to other beneficiary

If gift contains words of severance, and one dies before testator, other beneficiary only receives their part and the other part lapses

Question 14

What is the impact of s 33 on the lapsing of gifts?

Answer 14

Contains an automatically applied exception meaning that if a gift is made to testator’s children or other issue - if they pre-decease, gift will not lapse and will instead pass to the beneficiary’s issue

Question 15

How can a will be revoked?

Answer 15

Formal act or cancelling or withdrawing
By later will or codicil
By destruction
By marriage/ formation of civil partnership

Question 16

If there is an inconsistency between an initial will and a later codicil, what is the implication?

Answer 16

That the codicil revokes the will

Question 17

Are any witnesses required if the testator physically destroys their will?

Answer 17

No - can be done by authorised representative in testator’s presence

Question 18

What is the doctrine of dependant relative revocation?

Answer 18

If the courts can establish that the testator’s intention to revoke their will be destruction was conditional upon some future event which didn’t happen, court may save the previous will

Question 19

What needs to be done to ensure that a marriage does not revoke a will?

Answer 19

It appears on the face of the will that it was made in contemplation of marriage to a particular person and testator intended it to not be revoked

Question 20

What are the requirements for the execution of a codicil?

Answer 20

The same as a will

Question 21

What is the assumption regarding alterations?

Answer 21

That they were made after the will was executed unless the contrary can be proven

Question 22

How can an alteration be made valid, if there is no evidence it was made before the will?

Answer 22

If it is executed itself like a will (attested and executed)

Note that alterations could be made with initials of testator plus two witnesses in margin

Question 23

What happens if an alteration is made to a will, but it is not validly executed and the original wording is still apparent?

Answer 23

It is not a valid alteration and original wording stands

Question 24

What is the maximum number of executors for a will?

Answer 24

No maximum (although only 4 can apply for grant of representation)

Minimum of 1

Question 25

What is s 21 Administration of Justice Act 1982 and when does it apply?

Answer 25

Limited circumstances in which it is permitted for the court to look at external or extrinsic evidence in order to ascertain the testator’s intentions

Applies to a will when:
* any part is meaningless
* language ambiguous

Note that any extrinsic evidence is only an aid to interpretation, cannot be used to rewrite the will

Question 26

What does s 20 Administration of Justice Act 1982 enable the courts to do in relation to clerical errors in a will?

Answer 26

The court can order a will to be rectified so as to remedy a failure to carry out the testator’s intentions in consequence of a clerical error

Question 27

What is the impact of the Gender Recognition Act 2005?

Answer 27

The fact that a person’s gender has become the acquired gender in the will, under the Act this does not affect the disposal or devolution of property under a will or other instrument made before 4 April 2005

Question 28

What is the default position regarding the payment of IHT on any legacies?

Answer 28

Paid out of the residuary estate

Question 29

What is the default position regarding any associated costs with a specific gift, e.g. packing or transport?

Answer 29

Beneficiary of the gift will bear these costs

Question 30

What is the default position regarding any charges relating to a gift? E.g. mortgage on a property

Answer 30

Paid by beneficiary

Can be countered by wording like “gift of X house free of mortgage”

Question 31

What are the key clauses to contain in a will?

Answer 31

• Opening - testator and nature of the document
• Revocation clause
• Appointment - executors & trustees (if relevant)
• Non-residuary gifts - pecuniary legacies; specific legacies
• Residuary gift
• Survivorship clauses
• Administrative provisions - powers for PRs
• Attestation clause

Question 32

What is an example of an attestation clause?

Answer 32

Signed by me [testator’s name]

in our joint presence and then by us in [his/hers]