Interpretation of wills

Question 1

What are the factors that play a role in the interpretation of a will

Answer 1

Technical terms or legalistic vocabulary used
to describe specialised legal terms of the legal world should be avoided as far as possible.

Aside from improving
readability, writing in comprehensible language will result in fewer interpretational problems.

No matter how
carefully a will is written, the possibility of interpretational problems always remains.

Question 2

why one should avoid carefully drafting a will to the point where technical or legal terms are overused

Answer 2

These kind of wills can be hard to interpret and usually the only person who knows the true meaning of the drafted will (T) is no longer available to interpret

Question 3

Robertson v
Robertson’s Executors on golden rule for interpretation

Answer 3

The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these wishes are ascertained, the Court is bound to giveeffect to them, unless [it is] prevented by some rule or [of sic] law from doing so.

Question 4

Why is is so important to gear the interpretation of wills towards determining and giving effect to the intention of the
testator

Answer 4

the words that the testator uses in the will must be the primary indication
of his or her intention

Question 5

Conditions under which the courts may deviate from original words of the testator

Answer 5

1. If T had not intended those words to bear their ordinary and literal meaning
2. If T had not intended those words to be used in the first place and had actually intended that other words be usedto convey his or her intention.

Question 6

Reasons why the master can only interpret word in their literal sense

Answer 6

The Master of the High Court does not have an adjudicative function.
In other words, the Master does not have judicial powers to settle a dispute.
The reason for this is that the Master has neither the facilities nor the power to hear evidence.
He or she has an administrative function only

Question 7

Whats the intention to interpret a will ascertained by?

Answer 7

Looking at the will itself
If necessary then consider extrinsic evidence

Question 8

Most important thing to consider about the interpretation process

Answer 8

The interpreter cannot write a new will on the Testator’s behalf

Question 9

Two elements of intention

Answer 9

1. The desire of the testator.
   This element is important when dealing with words that have been inadvertently inserted in or omitted from the testator’s will.
2. The sense in which the testator has used the words in the will, leads to the interpretation of the will.
   There are certain aids that can be used for this, i.e. surrounding circumstances, statements by the testator as well as appropriate presumptions

Question 10

Sources of interpretation

Answer 10

1.The Will itself

2. Evidence about the will, facts, people and circumstance affected by the will
3. Aliunde evidence (evidence that comes from a source other than the documnet or testimony being considered)

Question 11

Section 2B of Wills Act on statutory rules of interpretation

Answer 11

If any person dies within 3 months after his marriage was dissolved by divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.

Question 12

Explanation of s2B of WA

Answer 12

Will shall be implemented as if the former spouse had predeceased the testator provided that the testator dies within 3 months of the dissolution of their marriage. (3 months window period).

Thus, the former spouse cannot inherit from the deceased’s estate even if she is listed in the will.

Question 13

Exceptions to Section 2B of WA

Answer 13

(1)The former spouse inherits subject to T’s intention to benefit him/her despite the marriage having ended.

(2)T foresaw the possibility of the marriage being dissolved by divorce or annulment, and expressly or impliedly indicated that his/her spouse was to benefit regardless of whether or not they were still married.

Question 14

Statutory interpretation ito S2D(1) of WA

Answer 14

In the interpretation of a will, unless the context otherwise indicates –

(a) an ADOPTED CHILD shall be regarded as being born from his adoptive parent or parents and, in determining his relationship to the testator or another person for the purposes of a will, as the child of his adoptive parent or parents and not as the child of his natural parent orparents or any previous adoptive parent or parents, except in the case of a natural parentwho is also the adoptive parent of the child concerned or who was married to the adoptiveparent of the child concerned at the time of the adoption;

(b) the fact that any person was born out of wedlock shall be ignored in determining his
relationship to the testator or another person for the purposes of a will;

(c) any benefit allocated to the children of a person, or to the members of a class of persons,
mentioned in the will shall vest in the children of that person or those members of the class
of persons who are alive at the time of the devolution of the benefit, or who have already
been conceived at that time and who are later born alive.

Question 15

Significance of the preamble to section 2D(1) namely ‘In the interpretation of a will, unless the context otherwise indicates’

Answer 15

Firstly, when interpreting a will, these rules will automatically apply unless the
testator has expressly or impliedly intended that they do not apply. The legislature has, therefore, given the testator
freedom to deviate from the statutory interpretation rules contained in this section if he or she so desires.

Secondly, these statutory interpretative rules trump common law rules in so far as there is a conflict between the
common law and the statutory rules.

Question 16

Section 2D(1)(a) in creating a fiction of ascendancy and descendancy

Answer 16

In terms of the
section, an adopted child is deemed to be a descendant child of his or her adoptive parents.

All rights and
obligations which existed between the child and its biological parents are terminated on adoption, unless the biological parent is the child’s adoptive parent, or the biological parent was married to the adoptive parent at the
time of the adoption.

Question 17

Section 2D(1)(b) of WA in going against common law

Answer 17

provides that the fact that a child was born out of wedlock must be ignored

– such a beneficiary will inherit without any discrimination.
It is, of course, open to the testator to exclude extramarital children from
inheriting, but then the testator has to be specific in this regard

Question 18

Section 2D(1)(c)

Answer 18

entrenches the nasciturus fiction and creates a deeming provision in favour of the nasciturus.

It is presumed, unless there is a contrary intention in the will, that if the testator leaves an inheritance to his or her
children or any other class of persons, he or she would have intended to benefit the nasciturus conceived at the
time of the devolution of the benefit and subsequently born alive.