Interpretation of wills, alterations and amendments

Question 1

What is a gift of personalty called?

Answer 1

A legacy

Question 2

What is a gift of land called?

Answer 2

A devise

Question 3

What is a specific legacy?

Answer 3

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

Question 4

What is a general legacy?

Answer 4

It can be made from any part of the estate and does not have a specific source

Question 5

What is a pecuniary legacy?

Answer 5

Legacies of money which can be specific or general

Question 6

What is a demonstrative legacy?

Answer 6

It is a legacy which the will directs should be paid primarily out of a particular fund

Question 7

What happens to a demonstrative legacy if the particular fund no longer exists or does not contain enough money?

Answer 7

The executors can make up the shortfall from any other available funds in the estate

Question 8

What is a residuary legacy?

Answer 8

Anything that is left after debts or liabilities of the estate and any specific, general or demonstrative gifts have been paid out

Question 9

When might a testamentary gift fail?

Answer 9

• disclaimer
• beneficiaries dying at the same time
• ademption
• abatement
• lapse
• witnessing of the will by a beneficiary
• divorce
• forfeiture by reason of unlawful killing

Question 10

What is the commorientes rule?

Answer 10

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

Question 11

What is ademption?

Answer 11

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

Question 12

What is abatement?

Answer 12

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

Question 13

When will a gift lapse?

Answer 13

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

Question 14

Are there any exceptions to the rule of lapse?

Answer 14

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

Question 15

What happens if a beneficiary witnesses the will?

Answer 15

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

Question 16

What is the effect of divorce on a will?

Answer 16

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

Question 17

What is the basic rule regarding alterations and amendments to wills after execution?

Answer 17

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

Question 18

What does executed in accordance with s9 mean?

Answer 18

The alteration must be signed by the testator and by two attesting witnesses

Question 19

What happens if the alteration obliterates some wording of the will?

Answer 19

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

Question 20

What about alterations made in pencil?

Answer 20

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

Question 21

For a codicil to be valid what is required?

Answer 21

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