Gifts Flashcards
Date from which a will speaks
A gift in a will takes effect as if the will had been executed immediately before death, unless there’s a contrary intention. Beneficiaries are determined at the date of the will’s execution, subject to class closing rules.
Types of gifts in a will
Legacies (gifts of personal property) and devises (gifts of real estate). Legacies can be in the form of a trust.
Specific Legacy
A gift of a specified part of the estate, clearly identified at the time of the will’s execution. Subject to the doctrine of ademption, meaning the gift fails if the item no longer belongs to the testator at the time of death.
General Legacy
A gift that doesn’t identify a particular item. The testator may or may not own the item at the time of making the will. The doctrine of ademption doesn’t apply, so the beneficiary can require the executors to purchase the item if there are sufficient funds.
Pecuniary Legacy
A gift of cash in a will. Can be general (e.g., “£1,000 to the NSPCC”), specific (e.g., “£1,000 to the NSPCC payable from the £5,000 owed to me by John Doe”), or demonstrative
Demonstrative Legacy
A general legacy that identifies the source from which the gift is to be made (e.g., “£1,000 to the NSPCC to be paid from my savings account held at ABC Bank”). If the account is closed or insufficient, the executors must meet the shortfall from other estate assets.
Residuary Legacy
Everything left of a deceased’s estate, not disposed of by other gifts or taken up by payment of liabilities and costs of administration. Residuary legacies make up the remainder of an estate after all other distributions have been made.
Ademption
A doctrine causing specific gifts to fail if they are no longer part of the testator’s estate, subject to a binding contract for sale, or no longer meet the description in the will. Changes in substance cause ademption, while changes in name or form do not.
Changes in Assets Before Death
Issues may arise when a testator makes a specific gift of an asset described in the will but acquires a different item meeting the same description before death. A will speaks from the date of death unless a contrary intention is apparent in the will.
Lapse
Occurs when a beneficiary predeceases the testator, causing the gift to fail. Substitutional gifts may prevent lapse. If a residual gift lapses, it passes under the rules of intestacy.
Will Construed at Date of Execution
Presumption that a will is construed regarding people at the date of execution. E.g., a gift to “the eldest son of Jacob” is to the person fulfilling that description at the date the will is made. If that person dies before the testator, the gift does not pass to the eldest surviving son.
hat happens to a gift made “to A and B jointly” if one recipient dies before the testator?
The whole gift passes to the surviving joint tenant (e.g., if A dies, the gift goes to B).
What happens to a gift made “to A and B in equal shares” if one recipient dies before the testator?
The deceased’s share lapses, and the surviving recipient takes only their share. The lapsed share passes under the intestacy rules, unless a substitutional gift is included in the will.
What is the purpose of a survival condition in a will?
To ensure a beneficiary (except a surviving spouse) survives the testator for a specified period of time, typically 28 or 30 days, or else the gift fails.
How does the law of ‘commorientes’ work in cases of simultaneous death?
For succession purposes, the younger person is presumed to have survived the elder when it is impossible to
