Establishing Entitlement

Question 1

What are the people called when dealing with the estate?

Answer 1

Executors if they were appointed by the will.

Administrators, if there was no appointment in the will.

Both executors and administrators may be referred to generically as ‘personal representatives’.

Question 2

How is entitlement in a testate estate established? ( sometimes referred to as construing a will.

Answer 2

By carefully studying the wording of the will itself, this will determine the effect of the various gifts in the will. They will also need to consider what property the testator owned and who the people name or described in the will are and whether they survived the testator.

Question 3

If the will is not clear, can the court re write or change a will?

Answer 3

It is not possible, even for a court, to change or rewrite a will to reflect other’s 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.

Question 4

In the event of a will not being clear, what is the process?

Answer 4

The court can be asked to interpret the will and discern the testator’s intentions through the language of the will itself.

In trying to establish those intentions the court applies two basic presumptions:

(a) Non- technical words bear their ordinary meaning- It is possible for some words to have several different meanings and then the court has to try to determine the meaning the testator intended given the context of the will as a whole- eg money can mean notes and coins, but it can also mean everything an individual owns.

(b) Technical words are given their technical meaning- for example in RE COOK 1948, the testatrix made a gift of ‘all my personal estate’ the court gave the word ‘personal’ its technical meaning of personally as opposed to realty.

Question 5

Can the presumptions that the court’s apply to interpreting wills be rebutted.

Answer 5

The presumptions that Non- technical words bear their ordinary meaning and technical words are given their technical meaning may be rebutted if from the will any admissible extrinsic evidence , it is is clear that the testator was using the word in a different sense.

The court cannot, however invent different meanings.

Question 6

In what circumstances would the court look at external or extrinsic evidence in order to ascertain the testators intention?

Answer 6

In limited circumstances the court will look at external or extrinsic evidence.

The admission of extrinsic evidence is governed by s21(1) Admisntration of justice Act 1982.

Section 21(1) permits extrinsic evidence to be admitted to interpret the will:

if any part of the will is meaningless or

The language used is ambiguous

or evidence other than evidence of the testators intention shows that the language is ambiguous in the light of the surrounding cirumcustaces.

Question 7

Can extrinsic evidence be used to re write the will?

Answer 7

No, it is only an aid to interpretation.

Question 8

What is the significance of S 20 Admisntration of Justice Act 1982

Answer 8

Although the court has no power to re write a will. The court does, however have a very limited power to correct, or rectify a will. This arises where the testator’s intentions are clear, but the wording of the will does not carry them into effect. This is known as reification.

S20 is very narrow. It would not be possible, for example to rectify a will because the solicitor who wrote the will misunderstood the law or thought that the words chosen achieved the desired outcome, but they did not do so.

Question 9

In what circumstances can a will be rectified by the courts?

Answer 9

The ability to rectify only arises where the will fails to carry out the testator’s intentions and that failure has one of two causes:

1. either in consequence of a clerical error
2. or a failure to understand instructions.

The first point to note is that the testers must have had intentions, a will cannot be rectified to include something that the estate had never thought about.

‘clerical error means an error of clerical nature and would include writing or omitting something by mistake.

Question 10

What happens if the words are included in a will by mistake?

Answer 10

The court may allow the will to be admitted to probate with those words omitted.

Question 11

Once the meaning of the wording of the will has been established, how will the property pass under the will?

Answer 11

This depends as certain types of property pass independently of the will either because they have their own rules of succession eg property held as beneficial joint tenants, or because the testator did not own them beneficially at death for example life assurance polices written in trust.

When the personal representatives have decided what property is capable of passing under the will, they must apply the terms of the will to the property.

Question 12

What is the basic rules for property (assests) that form the subject matter of a gift?

Answer 12

The basic rule is stated in the s24 Wills Act 1837 provides.

That the assests are determined according to those in existence at the date of death. This means that the will is interpreted as if it had been executed immediately before death.

A gift of ‘all my estate’ or ‘all the rest of my estate’ takes effect to dispose of all property the testator owned when they died, whether or not the testator owned it at the time the will was made.

UNLESS a country intention appears in the will. A country intention can be shown by the use of particular words. for example ‘present’ ‘the house which I now own’.

Important to note that if the assest is capable of increase or decrease between the date of the will and the date of death, eg ‘my collection of cars’ then this will be taken to mean the cars in the collection at the date of death.

Question 13

What is the general rule when it comes to identifying beneficiaries?

Answer 13

Section 24 Wills Act does not apply to people. Generally, references to beneficiaries are construed as to people alive at the time of the will’s execution.

If the will contains a gift made say, to Kate’s eldest daughter, this is construed as a gift to the person who fluffed that description when the will was made. If Kate has two daughters, Emily and Jenny, and Emily is the elder of the two, the gift passes to Emily. If Emily predeceases the testator, the gift does not pass to Jenny; although she is now Kate’s eldest serving daughter, she did not fit the description at the time the will as excuted. This is subject to country intention appearing in the will.

This is different from when property passes as that is said to speak from the date of death.

Question 14

What happens if the beneficiaries are named but described by reference to their relation to the testator?

Answer 14

Where the will refers to a class of beneficiaries for example ‘my children’, it is necessary to determine who fulfils that description.

As a general rule, such gifts are taken to refer to blood relationships. So, a gift to my children will be a gift only to the testator’s own children and not to the children of the testator’s spouse or civil partner.

However, the rule will not apply if the will provides otherwise.

Question 15

What is the meaning of ‘issue’ in a will

Answer 15

The normal meaning of issue is direct descendants of any generation. As well as the testator’s children it will include grandchildren, great-grandchildren and so on.

Question 16

In the case of succession to property under modern wills is it relevant whether the children parents are married or not?

Answer 16

it is irrelevant, a gift of ‘my estate to my sons in equal shares’ would include not only the testator’s two sons from marriage, but also the son born as a result of an extra martial affair. This is subject to a country intention shown in the will.

Question 17

What is the relevance of the Gender recognition Act 2004?

Answer 17

Section 15 provides that the fact that a person’s gender has become the acquired gender under the act does not affect the disposal or devolution of property under a will or other instrument made before 4th APRIL 2005. However, it will do so if the will or other instrument is made after that date.

For example, David obtains a full gender recognition certificate as a woman (Diana) in 2019.

Ann dies in 2023 with a will leaving everything to ‘my nieces equally’. If the will is made before 4 April 2005, Diana cannot share in Ann’s estate but she can if the will made on or after that date.

Question 18

What is the effect of Section 17 Gender Recognition Act 2004?

Answer 18

Trustee’s and personal representatives are protected from:

(a) Being under any duty to enquire whether a full gender recognition certificate has been issued or revoked before conveying or distributing any property

(b) Being liable to any person by reason of a conveyance or distribution of property made without regard to whether a full gender recognition certificate has been issued to any person or revoked without the trustee or personal representative having been given prior notice.

Question 19

Are terms husband and wife synonymous?

Answer 19

no, a gift to ones wife will fail if they never marry but enter a civil partnership instead.

Question 20

After establishing the wording of the will, the testators intentions, how the property passes under the will, and the beneficiaries that are identified… what is the next step?

Answer 20

Establishing whether the gifts made under a will are effective. This is not the same as establishing the validity of the will, the will itself may be valid, but the gifts may fail.

Question 21

What happens when a gift fails?

Answer 21

The basic effect is that 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 22

How can a gift fail?

Answer 22

1. Uncertainty- If it is not possible from the will to identify the subject matter of the gift or the recipient, the gift will fail for uncertainty. The court will first seek to establish the testator’s intentions and consider its powers of rectification, but if the meaning cannot be discerned the gift fails.

The only exception is a gift to charity which does not sufficently identify the charity. Provided that the gift is exclusively for charitatable purposes the court can direct which charity is to benefit.

2. BENEFICARY WITNESSES THE WILL - If a beneficiary, or their spouse or civil partner acts as a witness, the gift to the beneficiary fails S15 Wills Act 1837. However, the beneficiary or spouse/civil partner remains a competent witness and so the will is validly executed.

A gift will also fail if the will is witnessed by the beneficiary’s spouse. Spouse means the person to whom the beneficiary was married at the time that the will was executed.

a gift will survive, if the the witness was the beneficiary’s child or the beneficiary’s cohabitant or indeed, the person the beneficiary subsequently marries.

3. DIVORCE OR DISSOLUTION- 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 left to the former spouse or civil partner shall pass as if the former spouse or civil partner had died on the date of the dissouloutin or annulment of the marriage or civil partnership.

Importnant to note that this only applies if the marriage has been dissolved or annulled by the court.

4. ADEMPTION- usually occurs because the property has been sold, given away or destroyed during the testator’s lifetime.

Where the will includes a specific gift of company shares, the company may have been taken over since the will was made so that the testators shareholding has been changed into a holding in the new company. In such a case, the question is whether the assets is substantially the same? only if there is a change in substance will the gift be deemed.

A testator may dispose of the property described in a specific gift but before death acquires a different item of property which answers the same description. For example my piano or ‘my car’. it has been held that the presumption in such a case is that the testator intended that the specific gift is deemed. By referring to ‘my piano’ the testator may be taken to have shown a country intention.

However, if the property given is capable of increase or decrease eg shares, my jewlerry the testator will normally be taken to have made a gift of any items satisfying the description at death.

5. LAPSE- a gift in a will fails or lapses if the beneficiary dies before the testator. If a legacy lapses, the property falls into residue, unless the testator has provided for the possibility of lapse by including a substitutional gift. If a gift of residue lapses the property passes under the intestacy rules. Unless the testator has included a substutional gift.

if the beneficiary dies soon after the testator the property passes into the beneficiary’s estate.

6. DISCLAIMER- A beneficiary cannot be forced to accept a gift. A beneficiary can disclaim the gift, which will then fall into residue or, in the case of disclaimer of a gift of residue, pass on intestacy.

A beneficiary who disclaims a gift is treated as having predeceased the testator, which will allow the beficary’s issue to replace them under s33 wills act.

7. Forfeiture- A person should not benefit from the estate of person they unlawfully killed. The rules applies to any entitlement whether it arises by survivorship, under intestacy rules or under the terms of a will.

The rule applies to various forms of unlawful killing Including manslaughter, murder, aiding and abetting sucide and causing death by careless driving. However the rule does not apply where the killer was insane.

Question 23

What is a codicil?

Answer 23

It is a supplement to a will which, to be valid, must be executed in the same way as a will. The significance of a codicil in the context of a gift of property is that republishes the will as at the date of the codicil.

Question 24

Are there any exceptions to the forfeiture rules

Answer 24

Other than murder the forfeiture act 1982 allows the court to modify the effect of the forfeiture rule. The court can modify the effect of the rule, in any way including granting complete relief.

The killer must apply for the relief within three months of the convicition. The time limit is strict and the court has no discretion to extend the period.

Question 25

What is the significance of S184 Law of Property Act 1925 in relation to gift failing due to a Lapse

Answer 25

If the death of the testator and beneficiary occur very close together, it is vital to establish who died first.

The law of succession does not accept the possibility that two people might die at the same instant. If the order of their deaths cannot be proved, s184 provides that the elder of the two is deemed to have died first.

If the testator was older than the beneficary, the gift takes effect and the property passes as part of the beneficiary’s estate.

Question 26

What is the significance of survivorship clauses in relation to gift failing due to a Lapse

Answer 26

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

These survivorship provisions prevent a gift from taking effect where the beneficiary survives the testator for only a relatively short time or is deemed to have survived by s184.

Question 27

Can gifts lapse to more than one person?

Answer 27

A gift by will to two or more people as joint tenants will not lapse unless all the donees die before the testator. If a gift is made to A and B jointly and A dies before the testator, the Whole gift passes to B.

If the gift contains words of severance, for example ‘everything to A and B in equal shares’ This principle does not apply. If A dies before the testator A’ share lapse and B takes only one share.

The lapsed share will pass under the intestacy rules unless, as is often the case the testator included a substitutional gift to take effect if one of the original beneficiaries predeceased.

Question 28

What is the significance of S33 Wills act in relation to gift failing due to a Lapse

Answer 28

It provides that where a will contains a gift to the tester’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.

It does not apply to spouse, and in that case it will fall into the residue estate.

Section 33 does not apply if the will shows a contrary intention.