Chapter 3: The Interpretation of Wills

Question 1

When does a gift in a will take effect from?

Answer 1

Subject to a contrary intention in the will, a gift in a will takes effect as if the will had been executed immediately before death (rather than at the date of the will).

Question 2

When are the beneficiaries of the will determined?

Answer 2

At the date of the will’s execution (subject to the class closing rules)

Question 3

What are the different types of gift?

Answer 3

1. Specific legacy
2. General legacy
3. Pecuniary legacy
4. Demonstrative legacy
5. Residuary legacy

Question 4

What is a specific legacy?

Answer 4

Gift of a specified part of the estate that is clearly identified at the time of the will’s execution.
E.g., ‘My BMW car’

Question 5

What happens to a specific legacy if the item specified isn’t in the estate at the date of death?

Answer 5

This type of gift is subject to the doctrine of ademption, so, if the testator no longer owns that particular car at the date of death, then the gift fails.

Question 6

What is a general legacy?

Answer 6

It doesn’t identify a particular item in the estate - ‘a BMW car’

Question 7

What happens if a general legacy is made in a will, and it isn’t in the testator’s will at the date of death?

Answer 7

The doctrine of ademption doesn’t apply.

Therefore, if a gift of ‘a BMW car’ was made, if there is no BMW in the estate, the beneficiary is entitled to require the execution to purchase such a car if they have sufficient funds.

Question 8

What is a demonstrative legacy?

Answer 8

A general legacy which identifies the source from which the gift is to be made.

Question 9

What is ademption?

Answer 9

Under the doctrine of ademption, a specific gift will fail (or adeem) if it is no longer part of the testator’s estate, is subject to a binding contract for sale, or no longer meets the description in the will.

Question 10

When will change to the subject matter of a specific gift cause that gift to adeem?

Answer 10

A change in the substance of the subject matter of a specific gift causes that gift to adeem.

A mere change in the name or form does not.

Question 11

How can a testator avoid specific legacies adeeming?

Answer 11

Using language such as ‘the car I own on my death’, rather than ‘my car’.

Question 12

When will a gift lapse?

Answer 12

If a beneficiary has predeceased the testator.

Question 13

What happens if a testator includes a substitutional gift?

Answer 13

Common practice.
If effective, the gift will go to the substitute beneficiary + will not lapse.

Question 14

What happens if a gift lapses and there is no substitution clause?

Answer 14

The subject matter of the gift falls into the residue.

Question 15

What happens if a residual gift lapses?

Answer 15

It passes under the rules of intestacy

Question 16

What is the presumption re construction?

Answer 16

Presumption that, as regards people, a will is construed at the date of execution.

Question 17

How is a gift made to ‘the eldest son of Jacob’ construed?

Answer 17

As a gift to the person fulfilling that description at the date the will is made.

If that person dies before the testator, the gift does not pass to the eldest surviving son of Jacob.

Question 18

When will a gift to 2 or more people as joint tenants not lapse?

Answer 18

It will not lapse unless all the recipients die before testator.

Question 19

If a gift is made ‘to A and B jointly’ and A dies before the testator, what happens?

Answer 19

The whole gift passes to B

Question 20

If a gift is made to ‘A and B in equal shares’ and A dies before the testator, what happens?

Answer 20

A’s share lapses and B takes only one share.

The lapsed share will pass under the intestacy rules (subject to a substitutional gift being included in the will)

Question 21

What happens in circumstances where it is impossible to determine who died first out of the testator and a beneficiary?

Answer 21

The law of ‘commorientes’ provides that, for succession purposes, the younger person survives the elder

Question 22

What happens if a gift is made to the testator’s child or other issue, and they die before the testator?

Answer 22

If they leave living issue, the living issue will receive the gift.

This includes children who are ‘en ventre sa mere’ - conceived but unborn.

Unless a contrary intention is shown in the will, the issue will take ‘per stirpes’, and if more than 1 in equal shares.

Question 23

What does ‘per stirpes’ mean?

Answer 23

‘Through the root’ and indicates that the issue of the deceased person will split the deceased person’s share.

Question 24

What happens to gifts made to a witness?

Answer 24

A gift in a will fails if the beneficiary or the beneficiary’s spouse or civil partner witnesses the will.

The will itself remains valid

Question 25

When will a gift to a witness not fail?

Answer 25

If, ignoring the attestation by the beneficiary or spouse/civil partner, there are at least 2 other witnesses who aren’t beneficiaries or their spouses or civil partners.

Question 26

Who does the term ‘children’ relate to in relation to gifts made in wills?

Answer 26

Includes:
- legitimate,
- illegitimate, and
- adopted children.

Not stepchildren

Question 27

What is a class gift?

Answer 27

A gift of property to be divided among beneficiaries who fulfil a general description, or where there is an individual gift to the members of a class.

Question 28

When will class closing rules not apply?

Answer 28

They apply unless the will provides otherwise

Question 29

When will a class normally close?

Answer 29

When at least 1 beneficiary has a vested interest - to the exclusion of any potential beneficiary not then living.

Question 30

How would the class close in this case: “£5,000 to the children of Zebedee”?

Answer 30

The class closes at the date of the testator’s death if there is any child of Zebedee then living.

If not, the class remains open until the death of Zebedee.

Question 31

How would the class close in the following: “£5,000 to the children of Zebedee who attain the age of 18”?

Answer 31

The class closes at the testator’s death if any such child has already reached 18.

It will include those children already over 18, and any others then under 18, who later reach that age.

If no beneficiary is yet aged 18, the class remains open until the first beneficiary reaches 18, whereupon it closes around that child and any others then living who later reach 18.

Question 32

How would the class close in this case: “£5,000 to each of the children of Zebedee who attain the age of 18”?

Answer 32

The class closes at the date of the testator’s death.
If no children exist at that point, the gift fails.

Strictly speaking, this isn’t a class gift as the size of each beneficiary’s entitlement is fixed + doesn’t vary according to no. of members.

In the absence of any provision to the contrary, the class closes at the date of the testator’s death + includes only children then living.

Question 33

How may a will exclude the class closing rules?

Answer 33

Through specific provisions.

For example:
1) “To the children of Robert living at my death”
2) “To my grandchildren, whenever born”