Chapter 3: The Interpretation of Wills

Question 1

Does a gift in a will speak from death or the date that the will was created?

Answer 1

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”

Question 2

Will collective gifts such as a gift of “my jewellery” include items added to the collection after the will was created?

Answer 2

Collective gifts include any items that may have been added after the date of the will

Question 3

What does the word my in a group of individual objects indicate

Answer 3

The word ‘my’ in a gift of individual objects can indicate an intention to give the objects owned at the date of the will

Question 4

If a testator leaves a gift of “my car”, what will happen if their car has changed since the will was created?

Answer 4

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).

Question 5

At what point will beneficiaries of the will be determined?

Answer 5

Beneficiaries (objects) are determined at the date of the will’s execution

Question 6

If a gift is made to the “eldest son of Jacob”, when will the gift be construed?

Answer 6

• 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

Question 7

What is a specific legacy?

Answer 7

• 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.

Question 8

What is a general legacy?

Answer 8

• 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.

Question 9

What is a pecuniary legacy?

Answer 9

• A general gift of cash. e.g. £1,000 to the NSPCC.
• Pecuniary legacies can also be demonstrative.

Question 10

What is a demonstrative legacy?

Answer 10

• 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.

Question 11

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?

Answer 11

No, the charity can look to the executors to meet any shortfall from other cash or assets in the estate

Question 12

What is a residuary legacy?

Answer 12

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.

Question 13

Under the doctrine of ademption, when will a specific gift fail?

Answer 13

• 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

Question 14

Will a change in the form of the subject matter cause a specific gift to adeem?

Answer 14

No, a mere change in the name or form of a subject matter does not cause a specific gift to adeem

Question 15

What does it mean if a gift lapses?

Answer 15

If a beneficiary predeceases the testator, the gift will lapse (fail)

Question 16

If a beneficiary dies before the testator, but the will includes a substitional gift, will this lapse?

Answer 16

No, the gift will go to the substitute beneficiary and the gift will not lapse

Question 17

What will happen if a gift lapses and there is no substitute beneficiary?

Answer 17

The subject matter of the gift falls into the residue

Question 18

What will happen if a residual gift lapses?

Answer 18

The gift will pass under the rules of intestacy

Question 19

Will a gift by will to two or more people as joint tenants lapse if one of the recipients dies before the testator?

Answer 19

• 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

Question 20

What will happen when it is impossible to determine whether the testator or the beneficiary died first?

Answer 20

The older person is deemed to have died first

Question 21

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?

Answer 21

• 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

Question 22

What is per stirpes?

Answer 22

If a beneficiary dies before the testator, their share of the testator’s estate is divided equally among their issue.

Question 23

If a beneficiary or the beneficiary’s spouse witnesses the will, does the gift to the beneficiary fail?

Answer 23

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

Question 24

What are the class closing rules?

Answer 24

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.

Question 25

Can new members be added to a class after the class closes?

Answer 25

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.