Construction Flashcards
What happens if wording of a will is unclear?
Courts interpret using rules of construction focusing on date from which will speaks, relieving provisions, and survivorship provisions.
General rule about date from which will speaks (s24 Wills Act 1837)?
Will speaks from testator’s death unless contrary intention shown by wording like ‘my’, ‘now’, or ‘at present’.
How can contrary intention about date be shown in a will?
Use of words like ‘my’, ‘now’, or ‘at present’ when describing a gift.
What does ‘ademption’ mean?
Failure of specific gift because testator no longer owns item at death.
How is ‘my’ interpreted differently for collections (e.g., stamps, shares)?
‘My collection’ refers to the collection as it exists at the date of death, capable of growth or reduction.
How are beneficiaries identified in wills?
Beneficiaries generally identified at execution date unless contrary intention shown. Class beneficiaries determined by explicit wording or ‘class closing’ rules.
What is the ‘class closing’ rule?
Class closes when the first beneficiary obtains a vested interest unless the will expressly states otherwise.
Effect of executing a later codicil on identification of beneficiaries in the will?
Republishes will; beneficiaries identified from codicil date, not original will date.
Who bears IHT if will is silent?
The residue
Who covers cost of delivering a specific gift if will is silent?
Beneficiary receiving the gift bears delivery costs and preservation expenses unless explicitly stated otherwise.
What happens when a gift of proeprty has a charge on it? (i.e. a mortgage)
Property gifted subject to existing charges unless explicitly relieved, becoming general debt of estate paid from residue.
What does court do if unclear or ambiguous wills? What can they bring to support?
Court interprets unclear or ambiguous wills based on the wording used and testator’s intention, sometimes using extrinsic evidence.
When is extrinsic evidence allowed for will construction?
If will or parts are meaningless, ambiguous on their face, or ambiguous due to surrounding circumstances.
What is extrinsic evidence used for?
To clarify meaning, not to vary or contradict wording of will.
General survivorship rule for beneficiaries?
Beneficiary must survive testator even by minimal time, otherwise gift lapses.
Intestacy survivorship rule for spouses/civil partners?
Must survive by at least 28 days.
What is the ‘Commorientes’ rule?
If exact order of death uncertain, eldest presumed to die first.
How does s4 IHT Act 1984 treat simultaneous deaths? When does it apply?
Treats deaths as simultaneous to avoid double taxation; doesn’t apply if order of death known.
Potential issues from quick successive deaths of spouses?
Two administrators required; first spouse loses control over ultimate distribution; possible increased IHT.
How to prevent survivorship problems in wills?
Include express survivorship clause (commonly 28 days) to clarify succession and minimize complications.
What is equalization and what is the benefit of equalizing assets between spouses when including survivorship clause?
Equalization is where a couple balances their assets so they make the most use of their NRB and RNRB on death rather than leaving it all to one person at the end.
The benefit is that it reduces potential IHT liability if combined estates exceed nil rate band.
