Gifts (& failure of Gifts) Flashcards
What are the 4 main types of Gifts in a will?
(1) SPECIFC gifts
(2) GENERAL gifts
(3) DEMONSTRATIVE gifts
(4) RESIDUARY gifts
What are ‘SPECIFIC Gifts’?
PARTICULAR Item given to a person (e.g wardrobe)
What are ‘GENERAL Gifts’?
Items NOT DISTINGUISHED from each other
(e.g. £, shares)
£ = ‘Pecuniary’ gift
What are ‘DEMONSTRATIVE’ Gifts?
GENERAL Gift BUT paid from a SPECIFIC FUND
(e.g. £100 to X from HSBC Account)
What are ‘RESIDUARY gifts?
Gifts from the RESIDUARY ESTATE (i.e. after specific gifts, general gifts, debts, taxes and expenses paid)
What is the GENERAL Rule on what happens when the following types of Gift FAIL?
(1) Specific, General, Demonstrative
(2) Residuary
(1) Form part of the RESIDUARY ESTATE (UNLESS will specifies otherwise)
(2) PARTIAL INTESTACY - Residuary estate passes under INTESTACY RULES
What happens when a RESIDUARY GIFT Fails?
PARTIAL INTESTACY
Residuary estate passes under INTESTACY RULES
What happens when a Gift is given to a MINOR?
Held on TRUST until they became an ADULT (i.e. 18)
What are the 7 main ways a Gift will Fail?
(Tip - AWFUL DD)
(1) A - Ademption (Gift no longer exists on T’s death)
(2) W - Witness (B = witness executes will)
(3) F - Forfeiture (unlawful killing of T)
(4) U - Uncertainty (of subject or object)
(5) L - Lapse (B predeceases T)
(6) D - Divorce / dissolution (B = spouse & marriage ended)
(7) D - Disclaimed (B does not want gift)
(1) What is the GENERAL Rule on whether a Gift to a Witness FAILS?
(2) What is the exception to this rule?
(1) Fails
(2) UNLESS at least 2 other witnesses NOT Beneficiaries (i.e. 3 in total)
(1) What word is used to describe a gift that NO LONGER exists on T’s death?
(2) What is the effect of this on the Gift?
(1) Ademption
(2) Fail / Void
Gifts that are ‘Adeeemed’ (i.e. no longer exist on T’s death) will Fail / Void.
(1) What 1 type of gift does this rule apply to?
(2) What 2 types of gifts do the rules NOT apply to
(1) SPECIFIC gifts
(2)
(a) GENERAL gifts
(b) DEMONSTRATIVE gifts
An asset that has changed in NATURE may be ‘Adeemed’. (1) What is the test used to determine this?
(2) Will this test be met for:
(a) Change in NAME
(b) CHANGE in SUBSTANCE
TEST - Is the Asset ‘SUBSTANTIALLY THE SAME’?
(a) Change in NAME - YES
(b) Change in SUBSTANCE - NO
What is the term used when a Gift fails because the Beneficiary PREDECEASES the Testator?
‘Lapse’
What does it mean when a Gift ‘Lapses’?
Gift FAILS because the Beneficiary PREDECEASES the Testator
(1) What is the GENERAL RULE on what happens to a gift if a Beneficiary PREDECEASES the Testator?
(2) What is the EXCEPTION to this rule?
(1) Gift LAPSES (i.e. fails)
(2) S33 Wills Act 1837 - Beneficiary = ISSUE of T & then gift will pass to their ISSUE (unless contrary intention in will)
An exception to the General Rule that if a Beneficiary PREDECEASES the Testator is under S33 Wills Act 1837. What is this?
Beneficiary = ISSUE of T & then gift will pass to their ISSUE (unless contrary intention in will)
If the TESTATOR and BENEFICIARY die simultaneously / CANNOT be proved who died first, how will it be decided who died First?
Older (person)
Will a gift made to 2 or > people as JOINT TENANTS (e.g. ‘to A and B jointly) LAPSE if the B PREDECEASES the T?
NO - Gift passes to the Surviving B’s (by survivorship)
Will a gift made to 2 or > people as TENANTS IN COMMON (e.g. ‘To A and B in Equal Shares’) LAPSE if the B PREDECEASES the T re:
(a) Deceased B
(b) Surviving B(s)
(a) DECEASED B - ‘Lapses’ (part of ‘Residuary estate’)
(b) SURVIVING B - Receive their share
What does it mean if a Gift is ‘Disclaimed’?
Beneficiary refuses to accept the Gift
If a Gift is ‘Disclaimed’ (i.e. B refuses to accept the gift):
(1) How is the Beneficiary treated?
(2) When can a B NOT ‘Disclaim’ the gift?
(1) As if they PREDECEASED the Testator
(2) Already Received BENEFIT from the gift (e.g. income)
What does the rule of ‘FORFEITURE’ mean?
Beneficiary CANNOT receive Gift from a Testator they UNLAWFULLY KILL (e.g. Murder, Manslaughter)
(1) What is the effect of ‘Forfeiture’ on the Beneficiary?
(2) Can the Court grant relief from ‘Forfeiture’?
(1) Beneficiary treated as if they PREDECEASED the Testator
(2) YES but NOT for Murder
(1) What is the effect of ‘Divorce’ / Dissolution on a gift to a spouse?
(2) How is the spousal Beneficiary treated?
(1) Gift FAILS / LAPSES
(2) Spouse treated as if they DIED on DATE OF DIVORCE / DISSOLUTION
What are the 2 ways a Gift will fail due to UNCERTAINTY?
(1) Uncertainty of SUBJECT (beneficiaries)
(2) Uncertainty of OBJECTS (gift)
(1) What is the GENERAL rule on when a will ‘speaks’ from?
(2) What is the exception to this rule?
(3) When does the will ‘speak’ from in the exception in (2)
(1) Date of DEATH
(2) Beneficiary - (3) Speaks from DATE OF EXECUTION
A woman makes a will stating ‘I give £1000 to my eldest son’.
She has two sons. The eldest son dies predeceases the testator. What will happen to the gift of £1000 on the death of the testator and why?
Gift LAPSES / Fails
Why? - Will speaks from ‘Date of EXECUTION’ re beneficiaries and so the eldest son remains one that died
