Court of Construction/ Interpretation of Will Flashcards
Balaze Estate
Court ponders whether there should be a distinction between the courts of probate/ construction. Arguments for why they are different and have different rules of evidence
General Principles and Rules of construction
1) The words in question are to be construed in the context of the whole will
2) Paramount intention rule
3) Golden rule
4) Presumption of rationality
5) Presumption of going along with the law
6) Presumption against disinheritance
7) Irreconcilable dispositions
Presumption of going along with the law
If one thing goes against the law and one goes with it the court will assume the later
Presumption of rationality
presumed they do not want irrational things to flow from their dispositions
Golden rule
court will try their best to avoid intestacy
Paramount intention rule
The paramount intention of the testator is to be preferred over an interpretation of a specific intention that appears inconsistently
Presumption against disinheritance
Presumed to not want to disinherit next of kin
Irreconcilable dispositions
When two clauses appear and they actively contradict each other the classic rule is that the last of these two clauses prevails because the last clause is the most recent intention of the testator
Exceptions to irreconcilable dispositions
- Doesn’t apply if in awarding first you avoid intestacy
- Rule of last resort, court will really try to reconcile if at all possible
Per Stirpes
If gift to persons who take equally and one dies but leaves issue, issue steps into shoes of parent and takes their share in equal share
Per Capita
Per head. Equal absolutely.
Per Capita
Per head. Equal absolutely. Cannot mix generations, if kids still living split among them grandkids get nothing
Presumption per stirpes/ Per Capita
Per Capita assumed unless otherwise stated– changing though presumption now changing to per stirpes
