Chapter 2- Wills: Establishing Entitlement Flashcards
What are two basic presumptions when trying to establish a testator’s intention’s through their wording?
1- Non-technical words bear their ordinary meaning
2- Technical words are given their technical meaning.
These presumptions may be rebutted if the testator makes it clear in the will that the word they were using was for another use.
What is the first step in establishing entitlement?
Carefully reading through the wording of a will.
A will should be drawn up to accurately reflect the testator’s intentions
How will the courts interpret a will?
By looking at the words in the will itself.
The basic rule is that the court is not prepared to consider other evidence in order to try to establish what the testator intended.
If the meaning remains unclear, the gift will fail for uncertainty.
In what limited circumstances will the court look at other evidence other than a will to determine its meaning?
The court will look at external or extrinsic evidence in order to ascertain the testator’s intentions.
s21 Administration of Justice Act 1982 looks at when extrinsic evidence may be used…
It permits extrinsic evidence to be admitted to interpret the will insofar as any part of the will is meaningless or the language used is ambiguous or evidence shows that the language is ambiguous in the light of surrounding circumstances.
What is the 2 step process in s21 Administration of Justice Act ?
The case must come within one of the three options in s21(1). Only then will the court look at extrinsic evidence,, including evidence of the testator’s intention. In any event the extrinsic evidence is only an aid to interpretation, it cannot be used to write the will.
When can a court rectify a will?
In very limited circumstances
S24 AJA
… in consequence…
(a) of a clerical error
(b) of a failure to understand his instructions (testator’s)
It may order that the will b rectified so as to carry our his intentions.
What is the general rule under s24 AJA?
It applies to property, not people.
References to beneficiaries are construed as to people alive at the time of the will’s execution. The will speaks from the date of execution. Subject to contrary intention in the will.
Eg, eldest daughter at the time the will was made, not at the testator’s death.
When will a gift in a will fail?
Uncertainty
Beneficiary/ their spouse witnesses the will
Divorce
Ademption- testator no longer owns property at their death
Lapse- beneficiary dies before testator
Disclaimer- beneficiary cannot be forced to accept a gift
Forfeiture- a person should not benefit from their own crime
When will ademption occur?
When the testator no longer owns the gift at the time of their death.
If the property is sold, given away or destroyed.
What happens to gifts of ‘my car’ or ‘my piano’ when the original one is sold and a new one is bought?
The gift fails due to ademption.
BUT
If the gift has potential to increase or decrease, such as ‘my shares’ ‘my jewellery’, the testator will normally be taken to have made a gift of any items satisfying the description at the time of their death.
What is a codicil?
A supplement to a will which, to be valid, must be executed in the same way as a will.
In the context of a gift of property I that it republishes the will as at the date of the codicil.
What does s184 Law of Property Act say about when the testator and beneficiary die very close together in time?
it is vital to establish who died first.
If the order of who died first cannot be determined, it is presumed that the older of the two passed away first.
What is s33 Wills Act 1837?
It is an exception to the doctrine of lapse.
Direct descendants may accept the gift instead. Eg if a daughter dies, her children take her share equally.
S33 does not apply if the wills shows a contrary intention.
