2. Wills: interpretation, alteration and revocation Flashcards
How are assets determined under the will?
According to those in existence at date of death
What is rectification?
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
When does the ability to rectify arise?
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
When is the will said to “speak from”?
The date of death unless a contrary intention appears in the will
What is the implication of the use of “my” when referring to a specific asset?
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
What is the general rule regarding how beneficiaries are construed?
As they were at the time of execution of the will
What is the impact of the Gender Recognition Act 2004?
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
What are the ways in which a gift can fail?
- Uncertainty
- Beneficiary witnesses will
- Divorce or dissolution
- Ademption
- Lapse
What is ademption?
When testator no longer owns the property gifted in the will at death
What does ademption apply to?
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
What is the basic rule when a gift lapses?
If beneficiary dies before testator, gift passes back to residuary
What is the purpose of s 184 LPA 1925?
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
What is the difference between a gift passing to two people “jointly” versus passing to two people “in equal shares”?
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
What is the impact of s 33 on the lapsing of gifts?
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
How can a will be revoked?
Formal act or cancelling or withdrawing
By later will or codicil
By destruction
By marriage/ formation of civil partnership
If there is an inconsistency between an initial will and a later codicil, what is the implication?
That the codicil revokes the will
Are any witnesses required if the testator physically destroys their will?
No - can be done by authorised representative in testator’s presence
What is the doctrine of dependant relative revocation?
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
What needs to be done to ensure that a marriage does not revoke a will?
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
What are the requirements for the execution of a codicil?
The same as a will
What is the assumption regarding alterations?
That they were made after the will was executed unless the contrary can be proven
How can an alteration be made valid, if there is no evidence it was made before the will?
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
What happens if an alteration is made to a will, but it is not validly executed and the original wording is still apparent?
It is not a valid alteration and original wording stands
What is the maximum number of executors for a will?
No maximum (although only 4 can apply for grant of representation)
Minimum of 1
