Interpretations, Alterations And Revocations

Question 1

What are the two basic presumptions used to establish testators intentions ?

Answer 1

• Non-technical words bear their original meaning
• Technical words are given their technical meaning

Question 2

What if a court cannot determine the meaning of a gift ?

Answer 2

Then usually it will fail

Question 3

Under what circumstance can a court rectify a will ?

Answer 3

Where testators intentions are clear but the wording of the will does not bring them into effect

(Only if there is a clerical error)

Question 4

When is the will said to speak from ?

Answer 4

The date of death so will is interpreted to dispose of all property owned at death

Question 5

What happens to a gift fails and what might cause gifts to fail ?

Answer 5

Taken by residuals beneficiary:

• uncertainty
• beneficiary witnesses will
• Divorce or dissolution
• ademption
• lapse
• disclaimer
• forfeiture

Question 6

What is ademption ?

Answer 6

Gift will fail if testator no longer owns the property at death, or the property has changed substantially

Question 7

What is the basic rule of lapses ?

Answer 7

gift fails or lapses if beneficiary dies before testator.

If gift of residue lapses it will pass under intestacy

Question 8

What is a lapse of gifts to more than one person ?

Answer 8

If gifts to A and B jointly and A dies before B then it passes entirely to B

If A and B in equal shares shares pass in intestacy if A dies

Question 9

The act of revocation (cancelling) destroys the will - what are the three ways ?

Answer 9

• by a later will
• by destruction (physical)
• by marriage

Question 10

What effect does a divorce have on a will ?

Answer 10

Same as if the spouse had died

Question 11

What is a codicil used for ?

Answer 11

Rather then revoke an entire Will a testator may wish to make amendments through a codicil which is an additional document

Question 12

Can alterations to a will be made ?

Answer 12

Yes they can be made on the face of the Will - must be executed like a will or bear the initials of a testator and witness in margin

Question 13

What is the conditional revocation rule ?

Answer 13

Only intended to revoke the original wording if the substitute is effective. If substitute fails then the wording has not been revoked and original is valid.

Question 14

What is a gift of personalty in wills called ?

Answer 14

A legacy

Question 15

What is a gift of land in wills called ?

Answer 15

Devise

Question 16

What is a general gift ?

Answer 16

Not a gift of particular asset but paid for out of testators estate

Question 17

What is a specific gift ?

Answer 17

A gift of a particular asset in a testators estate

Question 18

What is a demonstrative gift ?

Answer 18

A gift in a will try at is not a gift of a particular asset in the estate but is a gift of a quantity or amount payable out of a separate fund

Question 19

When will courts use extrinsic evidence to Interpret a will ?

Answer 19

Where the Will provision is meaningless or ambiguous on its face or ambiguous in the light of the surrounding evidence

Question 20

When can a will not be revoked by a marriage ?

Answer 20

Only if it is made in contemplation of marriage to a particular person not general wish of marriage

Question 21

When gift left to issue who dies but survived by their own issue what is this called ?

Answer 21

A lapse

Question 22

What part of the Will bears the burden of IHT ?

Answer 22

The residue and the burden of any mortgage goes to the beneficiary who is given the charged property.