Interpretation of wills, alterations and amendments Flashcards
What is a gift of personalty called?
A legacy
What is a gift of land called?
A devise
What is a specific legacy?
It is an item that is separated off by the testator from the rest of their personal belongings to be given to a particular person
What is a general legacy?
It can be made from any part of the estate and does not have a specific source
What is a pecuniary legacy?
Legacies of money which can be specific or general
What is a demonstrative legacy?
It is a legacy which the will directs should be paid primarily out of a particular fund
What happens to a demonstrative legacy if the particular fund no longer exists or does not contain enough money?
The executors can make up the shortfall from any other available funds in the estate
What is a residuary legacy?
Anything that is left after debts or liabilities of the estate and any specific, general or demonstrative gifts have been paid out
When might a testamentary gift fail?
- disclaimer
- beneficiaries dying at the same time
- ademption
- abatement
- lapse
- witnessing of the will by a beneficiary
- divorce
- forfeiture by reason of unlawful killing
What is the commorientes rule?
If two people die at the same time and one was the beneficiary of the other and it is not possible to tell who died first then the presumption is that the oldest person died first
What is ademption?
Affects specific gifts only and if the item that was specifically gifted has gone out of the testator’s estate before the testator died, then that gift completely fails. If it is gone after the testator dies then the executors might be liable to pay any insurance
What is abatement?
Process by which the estate is reduced as the executors pay out all the debts and liabilities and if there is not enough assets then general legacies will abate before specific legacies
When will a gift lapse?
When there is nobody to give it to - if the beneficiary dies before the testator or is disqualified from receiving it. The gift will fall back into the residue of the estate and if it is a residuary gift it will be given in terms of intestacy rules. If the gift is a limited interest it will fall to the next person in line
Are there any exceptions to the rule of lapse?
Yes, if the intended beneficiary was a child of the testator and dies before the testator but has a child/children the gift will go to them instead
What happens if a beneficiary witnesses the will?
If the beneficiary, or their spouse, witnesses the will the gift is treated as utterly null and void therefore will lapse. (does not included engaged couples or if there were two other independent witnesses other than the beneficiary) - DOES NOT INVALIDATE THE WILL, JUST THE GIFT
What is the effect of divorce on a will?
The provisions of the will which appoint the surviving ex-spouse as an executor, a trustee, or which leaves the ex-spouse property shall take effect as if the former spouse has died on the date of decree absolute
What is the basic rule regarding alterations and amendments to wills after execution?
Obliterations, interlineations or any other alteration made after the will is executed will not be valid or have any effect except for two circumstances:
1. where the alteration has been executed in accordance with s9
2. where is it now impossible to read what was in the original will
If either apply then the alteration will take effect
What does executed in accordance with s9 mean?
The alteration must be signed by the testator and by two attesting witnesses
What happens if the alteration obliterates some wording of the will?
If the obliteration completely covers the original wording so it cannot be read the the clause will take effect as if the words were blank - even if there are photocopies showing the wording, it must be readable on the original will
What about alterations made in pencil?
It is assumed if the rest of the will is in ink that the pencil alterations are not intended to be effective even if they are validly executed
For a codicil to be valid what is required?
It must be executed in the same was as a will and it should state clearly on its face that it is a codicil to a specifically identified will
