Interpretation, alteration and revocation Flashcards
What to consider when establishing entitlement under a will
1) Consider the actual wording used in the will
2) Property passing under the will (what property the testator owned - do any pass outside the will)
3) Identifying the beneficiaries
4) Need to see if all the gifts are valid/effective
Consider the actual wording in the will - Court’s power
It is not possible for the court, to 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. However, if the meaning of the will is not clear cut it is necessary to interpret, or ask a court to interpret, the wording of the will.
Consider the actual wording in the will - Basic presumptions on interpretation
In trying to establish the testator’s intention the court applies two basic presumptions:
- Non-technical words bear their ordinary meaning
- Technical words are given their technical meaning
These presumptions may be rebutted if from the will (and any admissible extrinsic evidence) it is clear that the testator was using the word in a different sense
Consider the actual wording in the will - Establishing the testator’s intention
The court’s function is to determine the intention of the testator as expressed in the will when read as a whole. So the court will focus on the ordinary meaning of the words but will also take account of context and common sense.
Consider the actual wording in the will - Establishing the testator’s intention - Basic rule
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.
Consider the actual wording in the will - Establishing the testator’s intention - Exceptions
Some circumstances in which the court will look at external or extrinsic evidence:
- In so far as any part of it is meaningless
- In so far as the language used in any part of it is ambiguous on the face of it
- In so far as evidence other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of the surrounding circumstances
Consider the actual wording in the will - Rectification
The court has limited powers to correct/rectify a will. This arises where the testator’s intentions are clear but the wording of the will does not carry them into effect. If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions of a clerical error or of a failure to understand his instructions it may order that the will shall be rectified. A will cannot be rectified to include something that the testator had never thought about.
Property passing under the will - Basic Rule
The assets are determined according to those in existence at the date of death - the will ‘speaks from the date of 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
Property passing under the will - Exception
The will speaks from the date of death unless a contrary intention appears in the will. A contrary intention can be shown by the use of particular words.
Identifying beneficiaries - Referred to by name
Where the beneficiaries are referred to by name, identification is usually just a matter of locating them, establishing whether they survived the testator and, if not, the effect of their
prior death on the gift
Identifying beneficiaries - Referred to by description - General Rule
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’
Identifying beneficiaries - Referred to by description - General Rule - Example
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 surviving daughter, she did not fit the description at the time the will was executed.
Failure of gifts - Basic effect
Where a gift fails 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
Failure of gifts - Uncertainty
If 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. 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.
Failure of gifts - Beneficiary witnesses will
If a beneficiary or their spouse acts as a witness the gift to the beneficiary fails. The beneficiary or spouse remains a competent witness and the will is validly executed
Failure of gifts - Beneficiary witnesses will - More than two witnesses
A gift will not fail if the will is validly executed without the beneficiary’s signature. So, for example, if there are three witnesses to the will, one of whom is a beneficiary, the gift to that beneficiary is effective because the will is still validly executed even if the beneficiary’s signature is ignored.
Failure of gifts - Divorce or dissolution
After the date of the will the testator divorces then the gift in the will passing to the ex shall pass as if the ex has died
Failure of gifts - Ademption
A specific legacy will fail if the testator no longer owns that property at death. If the asset has been retained but has changed in nature since the will was made the question is whether the asset is substantially the same, having changed merely in name or form or whether it has changed in substance. Only if there has been a change in substance will the gift be adeemed
Failure of gifts - Ademption - Dispose of a gift and then buy a new one
Where 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. 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.
Codicil - Definition
A testator may wish to add to or change a will in a minor way and so may execute a codicil - this 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
it republishes the will as at the date of the codicil.
Failure of gifts - Lapse - General Rule
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. Where no conditions to the contrary are imposed in the will, a gift vests on the testator’s death. This means that provided the beneficiary survives the testator, for however short a time, the gift takes effect and passes under the beneficiaries estate.
Failure of gifts - Lapse - Exception
Applies to all gifts to the testator’s children. Provides that where a will contains a gift to the testaor’s child and the 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.
Revocation - Definition
The formal act of cancelling or withdrawing a will
Revocation - General rule
The rule is that a testator is free to revoke their will at any time provided that they have capacity to do so.
Revocation - Situations in which a will can be revoked
- By a later will or codicil
- By destruction
- By marriage/forming a civil partnership
Revocation - Destruction
Physical destruction is required. The act of destruction must be carried out with the intention to revoke. A will destroyed by accident is not revoked. The destruction must be carried out by the testator themselves or by someone else in the testator’s presence and by their direction
Revocation - Effect of divorce
If the testator gets divorced the will remains valid but the provisions in the will appointing the ex as executor or trustee take effect as if the ex died and any gift or property or interest to the ex also passes as if they had died
Revocation of will by marriage - General rule
Will is revoked by marriage
Revocation of will by marriage - Exception
Exception to general rule for will made in contemplation of marriage. For this to apply the will must show that at the time of making the will the testator was expecting to marry a particular person (not just a general expectation of marriage) and the testator must have intended that the will should not be revoked by the subsequent marriage
Alterations - Definition
Make changes on the face of the will itself. If the alterations were made before the will was executed they are valid provided that the testator intended the alterations to form part of the will. Alterations made after the will was executed will be valid if those alterations were themselves executed like a will or with the initials of the testator and the two witnesses
Alterations - Presumption
Any alterations are presumed to have been made after the will was executed unless the contrary can be proved.
Alterations - Invalid alteration
If there is an invalid alteration then the original wording of the will stands provided that it can be deciphered
Alterations - Exception to the requirement that to be valid an alteration must be executed
This occurs where the testator makes an amendment which obliterates the original wording. The effect is that there is a revocation of the original wording by destruction provided that the act of destruction is accompanied by the intention to revoke. Words obliterated by accident are not revoked
Alterations - Conditional revocation rule
In some instances where the testator obliterates the original wording the court may be prepared to apply the conditional revocation rule – most likely to apply whether the testator obliterates the original wording and at the same time adds some substitute wording – the court finds that the testator only intended to revoke the original words on condition that the substitute words were effective
