Establishing Entitlement

Question 1

What are the two basic presumptions for interpreting the language of the will itself?

Answer 1

Non-technical words bear their ordinary meaning.

Technical words are given their technical meaning.

Question 2

Can the court change or rewrite a will to reflect others’ opinions as to what the testator wanted or the court’s best guess as to what the testator would have wanted had they thought about it?

Answer 2

No

Question 3

How can the basic presumptions be rebutted?

Answer 3

Where it is clear that the testator was using the word in a different sense.

Question 4

What is the basic rule for the court when determining the intention of the testator through the will?

Answer 4

The court is not prepared to consider other evidence in order to try to establish what the testator intended.

If the meaning remains unclear the gift will fail for uncertainty.

Question 5

When can extrinsic evidence be used by the court to ascertain the testator’s intention?

Answer 5

Extrinsic evidence can be admitted to interpret the will insofar as any part of the will is meaningless or the language used is ambiguous or evidence (other than evidence of the testator’s intention) shows that the language is ambiguous in the light of the surrounding circumstances.

Question 6

When can a court rectify a will?

Answer 6

If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence of a clerical error or of a failure to understand his instructions.

Question 7

What is the basic rule for determining the subject matter of a gift?

Answer 7

Assets are determined according to those in existence at the date of death – the will is said to ‘speak from the date of death’.

Question 8

How can the will show a contrary intention to the rule that assets are determined at the date of death?

Answer 8

If the testator uses the word ‘my’ when referring to a specific asset, it is possible that the court could interpret this as meaning the gift is of the car which the testator owned at the date of the will.

Question 9

What is the rule for determination of beneficiaries?

Answer 9

References to beneficiaries are construed as to people alive at the time of the will’s execution – the will ‘speaks from the date of execution’

Question 10

Who falls under the description of children in a will?

Answer 10

Biological children.

Adopted children.

Children born outside of wedlock.

Question 11

How does gender reassignment affect the determination of beneficiaries of a will?

Answer 11

The fact that a person’s gender has become the acquired gender under the Gender Recognition Act 2004 does not affect the disposal or devolution of property under a will or other instrument made before 4 April 2005.

However, it will do so if the will or other instrument is made after that date.

Question 12

Are the terms ‘husband/wife’ and ‘civil partner’ synonymous in wills?

Answer 12

No

Question 13

What is the basic effect of a gift that fails?

Answer 13

The subject matter falls into the residuary estate and will be taken by the residuary beneficiary.

Where a gift of residue fails there will be a partial intestacy and the residuary estate will pass under the intestacy rules.

Question 14

When will a gift fail for uncertainty?

Answer 14

Where it is not possible from the wording of the will to identify the subject matter of the gift or the recipient, the gift will fail for uncertainty.

Question 15

What is the exception to the rule that a gift will fail for uncertainty?

Answer 15

Where a gift to charity does not sufficiently identify the charity but it is clear that the gift is exclusively for charitable purposes, the court can direct which charity is to benefit.

Question 16

What if there are three or more witnesses and one of them is a beneficiary or the spouse of a beneficiary?

Answer 16

The gift to that beneficiary is effective because the will is still validly executed even if the beneficiary’s signature is ignored.

Question 17

What is the effect of divorce or dissolution of a marriage on a will?

Answer 17

Where after the date of the will the testator’s marriage or civil partnership is dissolved, annulled or declared void, ‘any property which, or an interest in which, is devised or bequeathed to the former spouse or civil partner shall pass as if the former spouse or civil partner had died’ on the date of the dissolution or annulment of the marriage or civil partnership.

Question 18

What is ademption?

Answer 18

Where a specific legacy fails because the testator no longer owns that property at death or it has changed in substance.

Question 19

What if the testator disposes of the property described in a specific gift but before death acquires a different item of property which answers the same description?

Answer 19

It has been held that the presumption in such a case is that the testator intended that the specific gift was to be of the particular asset they owned at the date of the will so that the gift is adeemed.

However, If the property given is capable of increase or decrease (eg, ‘my shares’, ‘my jewellery’), the testator will normally be taken to have made a gift of any items satisfying the description at death.

Question 20

When will a gift fail for lapse?

Answer 20

If the beneficiary dies before the testator.

Question 21

What happens if the order of the deaths of the testator and the beneficiary cannot be proved?

Answer 21

The elder of the two is deemed to have died first.

Question 22

What are survivorship clauses?

Answer 22

Gifts in wills are made conditional upon the survival of the beneficiaries for a specific period of time, such as 28 days.

Question 23

How does the gift of property to joint tenants impact the doctrine of lapse?

Answer 23

If a gift is made ‘to A and B jointly’ and A dies before the testator, the whole gift passes to B.

Question 24

How does a class gift impact the doctrine of lapse?

Answer 24

There is no lapse unless all the members of the class predecease the testator.

Question 25

How does s.33 Wills Act 1837 impact the doctrine of lapse?

Answer 25

Where a will contains a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator, leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue.

Question 26

What is disclaimer?

Answer 26

Where a beneficiary rejects a gift and are treated as having pre-deceased the testator.

Question 27

When will disclaimer be barred?

Answer 27

A beneficiary who has received a benefit from a gift is taken to have accepted the gift and may no longer disclaim.

Question 28

What is the forfeiture rule?

Answer 28

A person should not benefit from the estate of a person they have unlawfully killed.

Question 29

When does the forfeiture rule not apply?

Answer 29

Where the killer was insane.

Question 30

Can the court provide relief against the forfeiture rule?

Answer 30

The court can grant complete relief in cases of unlawful killing other than murder where it is satisfied that the justice of the case demands it having regard to the conduct of the deceased and the offender and all the surrounding circumstances.

The killer must apply for the relief within three months of conviction.