Chapter 3: Interpretation of wills, alterations and amendments Flashcards
what is a legacy?
gift of personality
what is personalty
all property that is not land (physical objects, money, interests under a trust, debts owed)
what is a devise?
gift of land
what are the 5 types of legacies?
specific
general
pecuniary
demonstrative
residuary
what is a specific legacy?
Item or collection separated from other personal items and given to a particular person.
what is a general legacy?
Given from any part of the estate (not a specific source) e.g money from the estate.
Is a pecuniary legacy specific or general?
can be both
what is an annuity? what kind of legacy?
pecuniary - regular payments made out of the estate to a specific person.
what is a demonstrative legacy ‘almost always’
pecuniary
what is a demonstrative legacy?
The will directs - must be paid out of a particular fund.
what is the general principle of demonstrative legacies?
If there is NOT ENOUGH - general principle is that it is paid PRIMARILY not necessarily out of the named fund (make up shortfall from other available estate funds).
what is a residuary legacy?
what is ‘left’ of the estate
What happens when there is not clause to deal with residuary?
partial intestacy
what legacy can a Devise not be
pecuniary
WHEN might a gift fail?
a person disclaims
class gifts
beneficiaries dying at the same time/ incident
what is the general rule of liabilities for a gift?
if the will does not state who will pay - paid by the gift recipient.
What is the general principle of a closing a class gift?
The class (group) will close at the time of death of testator.
what applies when there is an injustice of a class gift?
class closing rules
(class closes when a member of the class first becomes entitled to possession - no one born after can benefit)
what is the commorientes rule?
persons dying together?
what is the presumption when two people died at the ‘same time’?
The oldest died first
what are the categories for why gifts fail?
ademption
abatement
lapse
beneficiary witnessed a will
caused death
what is ademption?
item specifically gifted is no longer apart / gone out of the estate at the time of death = FAILS (receive nothing)
what does ademption apply to?
only specific gifts - cannot be a replaced/ similar item
what happens if an item is damaged/ ruined after the death of a testator?
Executors might be liable to pay any insurance to the intended recipient
what happens if there is no clear evidence the gift outlived the testator?
the gift adeems
what is abatement?
process whereby the estate is reduced when liabilities/ debts are paid out.
what happens when there is a shortage of assets/ funds in the estate ?
Pay specific legacies before general
only pay general legacies that can be paid out of left over assets
what is the principle for demonstrative legacies in abatement?
treated as specific - paid first
what is a lapse?
when there is nobody to give a gift to (recipient died/ disqualified).
what is the general rule of lapse?
fall into estate residue UNLESS already residuary gift (partial testacy)
what happens if a gift is of limited interest and there is no one to give the gift to?
goes to next person in line under the will
what is the exception to lapse?
intended beneficiary is a child - dies before testator- has child/ children - goes to their children.
when can a beneficiary NOT take a gift?
they/ their spouse (must be married) witnessed the will
What happens to the will if a beneficiary witnesses?
the will is still valid but cannot receive gift
what is the provision on ex-spouses?
appointing ex-spouse an executor/ leaving ex- spouse property, shall take effect as if they died (VOID)
What happens if the recipient caused death?
Cannot profit from their crime.
both murder & manslaughter - defence is not relevant.
what are the exceptions for alterations/ amendments to a will?
Executed in accordance with s9 (formalities)
Where is it impossible to read what was in the original will
what happens if the alteration completely covers the words of the original will?
The words underneath are treated as blank - ineffective
what is the general presumption on timing of executions?
any amendments made will be treated as being made AFER EXECUTION UNLESS EVIDENCE to show otherwise.
