Chapter 3: The Interpretation of Wills Flashcards
Does a gift in a will speak from death or the date that the will was created?
A gift in a will takes effect as if it had been executed immediately before death
Exception = Will contains words to the contrary e.g. “now” or “at present”
Will collective gifts such as a gift of “my jewellery” include items added to the collection after the will was created?
Collective gifts include any items that may have been added after the date of the will
What does the word my in a group of individual objects indicate
The word ‘my’ in a gift of individual objects can indicate an intention to give the objects owned at the date of the will
If a testator leaves a gift of “my car”, what will happen if their car has changed since the will was created?
The presumption is that the testator was referring to their car at the time the will was created. If the car has changed, the gift will adeem (fail).
At what point will beneficiaries of the will be determined?
Beneficiaries (objects) are determined at the date of the will’s execution
If a gift is made to the “eldest son of Jacob”, when will the gift be construed?
- The gift will be construed as a gift to the person fulfilling the description at the time the will is made
- If that person dies before the testator, the gift will not pass to the eldest surving son of Jacob
What is a specific legacy?
- A gift which is clearly specified e.g. my BMW car registration number 123 XYZ4.
- A specific gift will adeem if it is not part of the estate when the testator dies.
What is a general legacy?
- A gift which does not identify a specific item e.g. “a BMW car”
- If the property does not form part of the estate, the personal representative must use estate funds to purchase the item.
What is a pecuniary legacy?
- A general gift of cash. e.g. £1,000 to the NSPCC.
- Pecuniary legacies can also be demonstrative.
What is a demonstrative legacy?
- General legacy which identifies the source from where gift is to be made
- E.g. £1,000 to NSPCC to be paid from my savings account held at ABC bank.
Demonstrative legacies
If the account is closed at the date of death or no longer has sufficient funds to meet the legacy, will the gift fail?
No, the charity can look to the executors to meet any shortfall from other cash or assets in the estate
What is a residuary legacy?
A gift of what is left in deceased’s estate after the specific, general and pecuniary gifts are made as well as the expenses of administering the estate.
Under the doctrine of ademption, when will a specific gift fail?
- The gift is no longer part of the testator’s estate
- The gift is subject to a binding contract for sale
- The gift no longer meets the description in the will
Will a change in the form of the subject matter cause a specific gift to adeem?
No, a mere change in the name or form of a subject matter does not cause a specific gift to adeem
What does it mean if a gift lapses?
If a beneficiary predeceases the testator, the gift will lapse (fail)
If a beneficiary dies before the testator, but the will includes a substitional gift, will this lapse?
No, the gift will go to the substitute beneficiary and the gift will not lapse
What will happen if a gift lapses and there is no substitute beneficiary?
The subject matter of the gift falls into the residue
What will happen if a residual gift lapses?
The gift will pass under the rules of intestacy
Will a gift by will to two or more people as joint tenants lapse if one of the recipients dies before the testator?
- No
- However, if a gift is to A and B in equal shares these are words of severance. If A dies before the testator, their share will lapse and B will take only their share. The lapsed share will pass under the rules of intestacy
What will happen when it is impossible to determine whether the testator or the beneficiary died first?
The older person is deemed to have died first
Will a gift lapse if it was made to the issue (children) of the testator and that beneficiary dies before the testator but leaves living issue?
- The gift will not lapse and will go to the living issue
- The issue will take per stirpes (equally)
Includes children who are conceived but unborn
What is per stirpes?
If a beneficiary dies before the testator, their share of the testator’s estate is divided equally among their issue.
If a beneficiary or the beneficiary’s spouse witnesses the will, does the gift to the beneficiary fail?
If a beneficiary or the beneficiary’s spouse witnesses the will, the gift to the beneficiary will fail unless there are two other witnesses who are not beneficiaries
The remainder of the will remains valid
What are the class closing rules?
If a gift is to a class of beneficiaries and it is contingent on something e.g. children reaching 18 the class will close when any member satisfies this condition as the interest becomes vested and not contingent.
Can new members be added to a class after the class closes?
When a class closes, no new members can be added but members already in the class will share the gift when they eventually satisfy the condition.
