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FLK2 - Wills & Administration > Interpreting a Will > Flashcards

Interpreting a Will Flashcards

1
Q

re: construing a will

what does this mean?

A

establishing entitlement under a will

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2
Q

re: construing a will

what will the court look at when determining T’s intention?

A

When determining T’s intention, the court will do the following:
o Look at the will as a whole
o Apply the two rebuttable presumptions
o Consider common sense
o Context at the time i.e. facts known/assumed by T

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3
Q

re: construing a will

will courts consider evidence when determining T’s intention?

A

Generally, the courts will not consider evidence in determining T’s intention, but it is permitted in relation to a part of a will where the wording is:
o Meaningless;
o Ambiguous on the face of it; or
o Ambiguous in the circumstances based on evidence other than evidence of T’s intention

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4
Q

re: construing a will

when will the courts consider evidence to establish intention?

A

in relation to a part of a will where the wording is:
o Meaningless;
o Ambiguous on the face of it; or
o Ambiguous in the circumstances based on evidence other than evidence of T’s intention

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5
Q

re: construing a will

if evidence is considered, how is it used?

A
  • Evidence can only be used to aid interpretation, not re-write the will
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6
Q

re: construing a will

when will a gift fail?

A
  • If the meaning is unclear, the gift(s) will fail for uncertainty
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7
Q

re: construing a will

what rebuttable presumptions apply when the court is discerning T’s intention?

what can the court not do?

A

The court applies two rebuttable presumptions when discerning T’s intention:
1. Non-technical words bear their ordinary meaning
2. Technical words are given their technical meaning

The court cannot invent different meanings

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8
Q

re: construing a will

explain the presumption ‘non-technical words bear their ordinary meaning’

A

o If a word has more than 1 meaning, then the court has to try to determine T’s intention by looking at the will as a whole i.e. does money inc. coins?

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9
Q

re: construing a will

give an example re: ‘technical words are given their technical meaning’

A

‘personal’ has been determined to mean ‘personalty’, not ‘realty’.

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10
Q

re: construing a will

when can the presumptions be rebutted?

A
  • Can be rebutted by the will itself and any admissible extrinsic evidence if it is a clear T intended for the word to have a different meaning
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11
Q

re: construing a will

what is meant by rectification?

A

The court cannot rewrite a will, but it can rectify a will where T’s intentions are clear, but the wording does not carry them into effect due:
o Clerical error (i.e. writing/omitting something by mistake); or
o Failure to understand T’s instructions

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12
Q

re: construing a will

when will a court rectify a will?

A

where the wording does not carry them into effect due to:
o Clerical error (i.e. writing/omitting something by mistake); or
o Failure to understand T’s instructions

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13
Q

re: construing a will

give examples where a will could not be rectified

A

o Solicitor misunderstood the law
o Solicitor thought the words achieved the desired outcome but they did no

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14
Q

re: construing a will

to what extent can a will be rectified?

A
  • A will can only be rectified to the extent of T’s intentions. It cannot be rectified to include something T never thought about.
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15
Q

re: will property

what is the rule?

A

the will speaks from the date of death
o In other words, you are looking the property they own at the time of death, not when the will was made.

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16
Q

re: will property

what is the exception to the general rule?

give examples

A

if there are words as evidence to the contrary in the will, i.e.:
o Words suggesting the present i.e. ‘the house I own now’  execution
o ‘my’ when referring to a specific asset  execution
o ‘my’ when referring to a generic asset i.e. ‘my collection of cars’  death

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17
Q

re: beneficiaries

when do these provisions apply?

A
  • This only applies where Bs are described, rather than specifically named
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18
Q

re: beneficiaries

what is the rule?

A

The will speaks from the date of execution, unless there is evidence to the contrary in the will

i.e. the will is to be distributed in accordance with those who satisfied the description at the time the will was made, not death.

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19
Q

re: beneficiaries

what is the position regarding descriptions of families i.e. ‘my children’?

A

Descriptions of family (i.e. ‘my children’) will be taken as blood relations unless the will suggests otherwise

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20
Q

re: beneficiaries

what is the position regarding adopted children?

A

o Adopted children are treated as the child of their adoptive parents, not their natural parents (unless they acquire an interest prior to adoption), unless the will suggests otherwise

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21
Q

re: beneficiaries

explain the position with descriptions as husband/wife/civl partner

A
  • The terms ‘husband/wife’ and civil partner are not synonymous
    o i.e. if a gift is left to a ‘wife’, but they are CPs it will fail
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22
Q

re: gender recognition

when do these provisions apply?

A
  • This applies where Bs are not named and the person has obtained a full gender recognition certificate (GRC)
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23
Q

re: gender recognition

what is the position if the will was made before 4 April 2005?

A

in effect, the GRC is ignored. The property passes to Bs in accordance with their gender at the time the will was executed.

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24
Q

re: gender recognition

what is the position if the will was made after 4 April 2005?

A

property passes to Bs in accordance with their GRC at the date of T’s death.

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25
Q

re: gender recognition

when can someone apply to the High Court?

A
  • Where the will is made on or after 4 April 2005 and a person is no longer due to inherit because of their GRC, they can make apply to the High Court
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26
Q

re: gender recognition

what power does the High Court have?

A

The court has wide direction to make an order where it is just to do so, i.e.: lump sum payment, transfer of property

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27
Q

re: gender recognition

what are PRs duties in this regard?

A
  • PRs do not have a duty to enquire into whether a GRC has been issued or revoked and they are not liable to any person if the PRs did not make such enquiries (so long as they didn’t know about the status of the GRC)
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28
Q

re: gender recognition

what other equitable options are available in this instance?

A
  • A person can still follow property into the hands of another unless it was purchased for value in good faith and without notice
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29
Q

re: failure of gifts

what happens if a gift fails?

A

it becomes part of residuary estate

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30
Q

re: failure of gifts

what happens if a residuary gift fails?

A

partial intestacy and passes under intestacy rules

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31
Q

re: failure of gifts

why might a gift fail?

A
  1. uncertainty
  2. B was a witness
  3. divorce or dissolution
  4. ademption
  5. doctrine of lapse
  6. disclaimer
  7. forfeiture rule
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32
Q

re: failure of gifts

explain uncertainty

A
  • If the subject matter or recipient of the gift is not clear, the courts will look at the wording of the will to discern T’s intention and use rectification, if possible.
  • If this cannot be determined, the gift will fail for uncertainty.
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33
Q

re: failure of gifts

what is the exception to the uncertainty rule?

A

gifts to charity which don’t sufficiently identify the charity will not fail if it is exclusively for charitable purposes. The court will elect the charity.

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34
Q

re: failure of gifts

explain Bs as W to a will

A

if B or their spouse/CP witnesses a will, any gift to B will fail

This only applies to Bs and spouse/CPs married at the time of execution

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35
Q

re: failure of gifts

when will a gift to B not fail where they are a W

A

the gift will not fail if:
o The will was validly executed without B’s/their spouse/CPs signature i.e. if there are 3 witnesses to the will and 1 was a B.
o There is a codicil which confirms the original will was not witnesses by B or their spouse/CP

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36
Q

re: failure of gifts

explain divorce / dissolution

A
  • Where a gift is made to a spouse/CP and the marriage/CP is later dissolved, annulled or declared void, the gift will fail
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37
Q

re: failure of gifts

explain ademption

A
  • a specific legacy fails (i.e. adeems) if T no longer owns it at death i.e. the asset may have been sold, given away or destroyed
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38
Q

re: failure of gifts

what are the two common scenarios in relation to ademption?

A
  1. Retained Asset Changed in Nature
  2. Disposal and Acquire of New Property
39
Q

re: failure of gifts

explain ‘retained asset changed in nature’ and when a gift will be adeemed

give an example

A
  • Change in name or form = no ademption
  • Change in substance = ademption

i.e. gift of shares. The company has been taken over since execution of the will. The legacy is not adeemed.

40
Q

re: failure of gifts

explain ‘disposal and acquire of new property’ and when a gift will be adeemed

A

i.e. T no longer owns the gift but has acquired a different item that matches the description

  • Specific asset (i.e. my car) > presumed T intended to gift the asset they owned at execution. The gift is adeemed, unless there is contrary intention.
    o A codicil republishes a will, so if a codicil is executed after the property is disposed of & replaced, B will inherit the replacement asset
  • If the legacy is capable of increase/decrease (i.e. my shares, my jewellery) > assumed T intended to gift the asset(s) they owned at death
41
Q

re: failure of gifts

what is the doctrine of lapse?

A

a gift will fail if B predeceases T, unless there is contrary intention i.e. the will is clear the property is to pass to the holder of a position / office at the date of death

42
Q

re: failure of gifts

what is the exception to the doctrine of lapse? how is the property distributed?

A

If T makes a gift to an issue but they pre-deceases T, the gift doesn’t lapse but passes to the deceased B’s surviving issue, unless there is contrary intention (this is substitution under s33 Wills Act 1837)

Per stirpes distribution applies

43
Q

re: failure of gifts

what type of gift will a lapsed gift become?

A

Lapsed gifts form part of the residue estate unless there is a substitutional gift i.e. provision for a gift to pass to someone else if B cannot inherit

44
Q

re: failure of gifts

what happens if the residue gift lapses?

A
  • Lapsed residue gifts pass under IR unless there is a substitutional gift
45
Q

re: failure of gifts

what effect does a codicil have?

Give an example

A

If a codicil is made, this republishes the will and so the situation at the date of execution of the codicil will apply

example > a gift is made to ‘my eldest son’. If they die, the gift does not pass to the eldest surviving son. It is the eldest son at execution. If a codicil is made, it will be the oldest son at the date of execution of the codicil.

46
Q

re: failure of gifts

what happens if it cannot be determine whether T or B died first?

A

If it cannot be ascertained whether T or B died first, it is presumed the oldest died first (s184)

NB: if T’s will contained an survivorship clause, B will not inherit

47
Q

re: failure of gifts

what is the position regarding lapse and gifts to joint tenants? when will this not apply?

give an example

A

Gifts to joint tenants will not lapse unless all the JTs pre-decease T
o There can be more than 2 JTs and they can be named or a class of Bs
o i.e. ‘to my nieces jointly’  if one dies, the gift goes to the remaining

If there are words of severance, this does not apply i.e. ‘everything to A & B in equal shares’. If one dies, the remaining will not take D’s share.

48
Q

re: failure of gifts

explain disclaimer

A
  • B can disclaim a gift they do not want to inherit
  • B’s issue can be substituted if they disclaim
  • If there is no substitution, the gift will fall into the residue
  • If the residue is disclaimed, it will pass under IR
49
Q

re: failure of gifts

when does B lose the ability to disclaim?

A
  • Once B has accepted any benefit of the gift, they cannot disclaim
50
Q

re: failure of gifts

explain the forfeiture rule

A

if B has unlawfully killed T, they will automatically forfeit their entitlement

this does not apply where B was insane

51
Q

re: failure of gifts

what is included in the definition of ‘unlawful killing’?

A

o Unlawful killing inc. murder, manslaughter, aiding and abetting suicide and death by dangerous driving

52
Q

re: failure of gifts

what does the forfeiture rule apply to?

A
  • This rule applies to all entitlement i.e. survivorship, under a will or IR
53
Q

re: failure of gifts

what is the exception to the forfeiture rule?

A

Except in relation to murder, the court can modify the effect of the forfeiture rule in anyway (inc. complete relief) if:
o It is in the interests of justice, having regard to the conduct of D, B and all the circumstances; and
o B has applied within 3 months of conviction (strict timescale – no ext.)

54
Q

re: revocation

what is revocation?

A

the formal act of cancelling or withdrawing a whole or part of a will

A will is always revocable, even if T claims it is not (NB: see will contracts and mutual wills)

55
Q

re: revocation

when and how can a will be revoked?

A

T can revoke their will at any time provided they have capacity by:
1. later will or codicil
2. destruction
3. marriage/CP

56
Q

re: revocation

explain revocation by later will or codicil

A

A later will/codicil/written declaration executed in the same way as a will can revoke an earlier will in whole or part by:
o A revocation clause (no specific wording is required); or
o Implication  the most recent will will revoke the earlier will to the extent they are inconsistent

57
Q

re: revocation

how can a later will / codicil revoke a will?

A

o A revocation clause (no specific wording is required); or
o Implication  the most recent will will revoke the earlier will to the extent they are inconsistent

58
Q

re: revocation

what is the doctrine of conditional revocation?

give an example

A

if the revocation was subject to a condition that was not satisfied, the revocation will be ineffective

i.e. T revoked their will by destruction on the condition of a future event taking place (i.e. creating a new will). If this did not happen, the court may apply this doctrine and to find that the original will was not revoked.

59
Q

re: revocation

explain revocation by destruction

A
  • A will can be revoked by T, or another person under T’s direction in T’s presence, destroying the will with the intention of revoking it
60
Q

re: revocation - by destruction

what is meant by ‘destroy’

A

must be physical destruction. Symbolic destruction i.e. crossing out or writing ‘revoked’ is not sufficient.

61
Q

re: revocation - by destruction

what happens if only part of the will is destroyed?

A

If only part of the will is destroyed:
o A vital part i.e. the signature  may revoke the whole will
o A less substantial part may revoke that part of the will  the test is whether the remainder of the will is intelligible and can still operate.

62
Q

re: revocation - by destruction

explain ‘intention’

A

a will destroyed by accident is not revoked.

63
Q

re: revocation - destruction

what will the courts do when a will is destroyed but not revoked?

A

Where a will is destroyed, but not revoked, the court will look at evidence to establish its contents i.e. a copy or oral evidence

The court may try to use the doctrine of conditional revocation to save a will
o i.e. T revoked their will by destruction on the condition of a future event taking place (i.e. creating a new will). If this did not happen, the court may apply this doctrine and to find that the original will was not revoked.

64
Q

re: revocation - marriage

what is the general rule?

A

if T marries or forms a CP, the will is automatically revoked

65
Q

re: revocation - marriage

what is the exception?

A

the will is not be automatically revoked on marriage where:
1. T makes the will prior to and in expectation of a forthcoming marriage to a particular person (i.e. general marriage is not sufficient); and
2. T does not intend for the will to be revoked (i.e. the will must state this)

66
Q

re: revocation - marriage

what happens if the marriage doesn’t go ahead?

A

will is still effective (unless stated otherwise)

67
Q

re: revocation - marriage

what happens if T marries someone who isn’t the ‘particular person’?

A

the will is revoked

68
Q

re: revocation - marriage

what happens if a CP is converted into a marriage?

A
  • If a CP is converted to a marriage, this does not revoke the will
69
Q

re: revocation - marriage

what is the effect of divorce/dissolution?

A

the will is still valid but the following provisions no longer take effect:
o Any provision appointing the former partner as an executor or trustee;
o Any entitlement to property

70
Q

re: revocation - marriage

what is the effect of a marriage being annulled/declared void?

A

the will is still valid but the following provisions no longer take effect:
o Any provision appointing the former partner as an executor or trustee;
o Any entitlement to property

71
Q

re: will contract

what is this?

A
  • i.e. T promises to leave their estate / a gift to B in exchange for consideration.
72
Q

re: will contract

what happens if T tries to revoke this?

A

If T revokes this, this will amount to a breach of contract and the estate would need to pay B contractual damages

73
Q

re: mutual will

what is a mutual will?

A

i.e. a binding agreement where 2 people make their wills on the same agreed terms which cannot be altered after death

A mirror will is not sufficient as a mutual will. There must have been a clear agreement for there to be mutual wills.

74
Q

re: mutual will

what is the position of the surviving partner?

A
  • The surviving partner is the absolute owner of the property during their lifetime. Whilst they cannot spend all the assets with the intention of defeating the agreement, if they make bad investments and lose the money the situation is different.
74
Q

re: mutual will

what happens if one party tries to amend their will after the other has passed away?

A
  • If one party tries to amend their will after the other has died, the doctrine of mutual wills (DOMW) will impose a constructive trust over the surviving partner’s estate in favour of the original Bs under the mutual will

o DOMW doesn’t invalidate the new will, but prevents it from taking effect

74
Q

re: mutual will

what effect does the doctrine of mutual wills have?

A

o DOMW doesn’t invalidate the new will, but prevents it from taking effect

75
Q

re: mutual wills

can this be revoked?

A
  • The will can only be revoked if both Ts are alive and agree
76
Q

re: mutual wills

what happens if one unilaterally revokes?

A

o If one T unilaterally revokes, this is a breach of contract. The other T would need to seek damages for loss suffered as a result

77
Q

re: codicils

what is this?

A
  • a document which supplements an existing will
  • Codicils are used to make amendments to or revoke (in part) an existing will
77
Q

re: codicils

when should a new will be made rather than a codicil?

A

o Advisable to make a new will (not codicil) if the changes are substantial

78
Q

re: codicils

how are these executed?

A
  • Codicils are executed in the same way as a will
79
Q

re: codicils

what effect does a codicil have?

A
  • A codicil has the effect of republishing the existing will, this means the will will take effect at the same time as the codicil
80
Q

re: codicils

what is necessary for the codicil to take effect?

A

o T must have intended to republish the will. There may be an express statement or courts will infer intention from reference to the existing will

81
Q

re: codicils

why are these / republished will significant?

A

in the instances where ‘the will speaks from execution’

82
Q

how can a will be resurrected?

A
  • Codicils can also be used to revive a revoked will.
83
Q

when will a resurrected will take effect?

A
  • The will will take effect at the time it is revived
84
Q

where a codicil is resurrecting a will, what must it include?

A

The codicil must evidence T’s intention to revive the will, i.e.:
o Express statement or inclusion of a disposition which means T had no other intention but to revive the will
o A mere reference to the existing will is not sufficient

85
Q

re: alterations to a will

what is the starting point?

A

alterations have taken place after execution (rebuttable)

86
Q

re: alterations to a will

what is the position where the alteration was made before execution?

A

valid if there is evidence to support this (i.e. to rebut the above presumption)

87
Q

re: alterations to a will

what is the position where the alteration was made after execution?

A

valid if executed like a will

88
Q

re: alterations to a will

what is the position if the alteration is invalid?

A
  • If the alteration is invalid, the original wording stands if it is ‘apparent’ i.e. it can be ascertained using ‘ordinary means’
89
Q

re: alterations to a will

give examples in relation to ordinary means

A

o Permissible  a magnifying glass or holding it up to light

o Not permissible  extrinsic evidence (i.e. copy of will, evidence from solicitor), interference with the will (i.e. applying chemicals, x-ray)

90
Q

re: alterations to a will

what might the court do if T completely obliterated the original wording when making the amendment?

give an example

A

When making the alteration, if T completely obliterated the original wording, the court may be prepared to apply the conditional revocation rule:
o i.e. T only intended to revoke the original words on the condition the substitute words were effective. This has not been satisfied because the substitute wording was unexecuted and thus invalid. This would mean the original words have not been revoked and the court can look at any evidence to determine the original wording.

  • If T obliterated the original wording and did not write anything, this is simply revocation by destruction. The gift is revoked.

FLK2 - Wills & Administration (8 decks)

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