Establishing Entitlement Flashcards
• The validity of a will and interpratation of the contents of a will. The distribution of testate, instate and particular intestate estates. • The interpretation of wills. • Effect of different types of gifts • Failure of gifts.
What are the people called when dealing with the estate?
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’.
How is entitlement in a testate estate established? ( sometimes referred to as construing a will.
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.
If the will is not clear, can the court re write or change a will?
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.
In the event of a will not being clear, what is the process?
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.
Can the presumptions that the court’s apply to interpreting wills be rebutted.
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.
In what circumstances would the court look at external or extrinsic evidence in order to ascertain the testators intention?
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.
Can extrinsic evidence be used to re write the will?
No, it is only an aid to interpretation.
What is the significance of S 20 Admisntration of Justice Act 1982
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.
In what circumstances can a will be rectified by the courts?
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:
- either in consequence of a clerical error
- 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.
What happens if the words are included in a will by mistake?
The court may allow the will to be admitted to probate with those words omitted.
Once the meaning of the wording of the will has been established, how will the property pass under the will?
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.
What is the basic rules for property (assests) that form the subject matter of a gift?
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.
What is the general rule when it comes to identifying beneficiaries?
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.
What happens if the beneficiaries are named but described by reference to their relation to the testator?
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.
What is the meaning of ‘issue’ in a will
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.