Interpretation, alteration and revocation of wills

Question 1

What are the two presumptions which the court will apply when interpreting the wording of a testator’s intentions?

Can they be rebutted?

Answer 1

Non-technical words will bear their ordinary meaning

Technical words are given their technical meaning

They can be rebutted if it is clear from the will that the testator was using the word in a different sense.

Question 2

What will the courts look at to determine the testator’s intention?

Answer 2

The will itself and sometimes they will look at extrinsic evidence to ascertain certain intentions.

Question 3

What are the requirements for the admission of extrinsic evidence to determine a testator’s intention?

Answer 3

Extrinsic evidence may be admitted where:

• a will (or any part of it) is meaningless
• the language used is ambiguous on the face of it
• where evidence shows that the language used is ambiguous in the surrounding circumstances (e.g. ‘all to mother’ = the testator’s nickname for his wife)

Question 4

When does a court have the power to rectify a will?

Answer 4

When a testator’s intentions are clear but the wording does not carry them into effect.

This may arise as a result of a clerical error or a failure to understand instructions.

Question 5

If property passes independently outside of the will, when does it take effect?

Answer 5

From the date of death, unless there is a contrary intention.

Question 6

What is the general rule on identifying beneficiaries by description?

Answer 6

Any references to beneficiaries will be construed as to people alive at the time of the will’s execution.

Question 7

Where the will refers to a group of family members e.g. ‘my children’, what is the general rule on how the will is interpreted?

Answer 7

It will apply to blood relationships only, unless there is a contrary provision within the will.

Question 8

What happens when a beneficiary under a will has changed gender?

Answer 8

An application may be made to the High Court who then have discretion to order payment of a lump sum, transfer or settlement of the property if they are satisfied.

Question 9

What happens if a gift is left to a spouse but the beneficiary enters into a civil partnership instead?

Answer 9

Spouse and civil partner are not synonymous therefore the gift would fail.

Question 10

When can a gift in a will fail? (6)

Answer 10

Uncertainty

Where a beneficiary witnesses a will

Where marriage or civil partnership has been dissolved, annulled or declared void after the date of the will

Where a specific gift is no longer the testator’s at death (adeemed)

A gift lapses

A beneficiary disclaims a gift

Where a gift is forfeited due to the fact they should not benefit from an estate of someone they have lawfully killed

Question 11

What happens if a gift is left to someone in the capacity as ‘X’s wife’ but they subsequently divorce?

Answer 11

The will speaks from the date of the execution. If the individual meets the description at the date of the will (regardless of a subsequent divorce) then the gift can continue.

Question 12

How can a gift lapse?

Answer 12

Where the beneficiary dies before the testator. In this case, a gift will fall into residue unless there is a substitution clause.

Exceptions apply to this general rule.

Question 13

If a gift lapses, what are the exceptions to the general rule?

Answer 13

Survivorship clauses require survival of 28 days for a beneficiary to benefit.

Where it passes to two people, it instead passes to the other person who is still alive.

Beneficiaries’ gifts who die can pass to their own issue under section 33 of the Wills Act.

Question 14

When can a testator revoke a will?

Answer 14

At any time provided they have the capacity to do so.

Capacity is assessed in the same way as when the testator created the will.

Question 15

What situations arise where a will is constituted revoked?

Answer 15

When a later will or codicil is created

When the will is destroyed by burning, tearing or otherwise destroying by the testator or someone in their presence with the intention to revoke

When the testator gets married or has a civil partnership

Question 16

What is the doctrine of conditional revocation / dependent relative revocation?

Answer 16

Where a testator intends to revoke an earlier will conditional upon a certain event. If that condition is not satisfied, the earlier will may remain valid.

Question 17

What are the exceptions to revocation when a testator is not married?

Answer 17

Where the testator intends to get married.

The forthcoming marriage must be to a particular person and the testator must intend that the will is not to be revoked by marriage.

Question 18

What is a mutual will?

Answer 18

Where a husband and wife leave their estate to each other on the basis that each one will dispose of their estate in a particular way.

Question 19

What happens if one person revokes their mutual will and goes against its original intention?

Answer 19

The doctrine of mutual wills will step in and impose a constructive trust over the living spouse’s estate for the benefit of the original beneficiary as intended for the mutual will.

Question 20

What is a codicil?

Answer 20

A document which is executed in the same way as a will which supplements an existing will.

It can amend, add or revoke in part, an existing will.

Question 21

How can a will be altered?

Answer 21

A will should be altered as if those alterations were themselves executed as a will.

Question 22

When referring to a house, why is an oral statement not sufficient to create a valid trust?

Answer 22

The Law of Property Act declares a trust in land unenforceable unless the declaration is evidenced in writing signed by the person able to declare the trust so at present the trust is invalid but could be made valid if the settlor later evidences his declaration in signed writing