interpreting the will Flashcards
property that does not pass through a will
survivorship property
pension benefit
insurance written in trust
trust property - dissolve according to terms of trust
testator and testatrix
testator - male
testatrix - female
executor or administrator
executor - will
administrator - no will
the order in which property should be dealt with
property passing outside of will
property passing inside of will
intestate property
legacies
gifts of personalty
devise
gift of reality
specific gift
gift of a specific item - if it is substantially different it will fail
general gift
item corresponding to description - if no longer has item use funds from estate to get it
demonstrative gift
general in nature but paid out of a specific funds - if fund no longer exists then pay out of rest of estate
pecuniary gift
gift of money
residue gift
everything left over
where does the property go when a gift fails
the residue
what happens to a will following divorce
gifts fail - not just separation though, must be divorce
how to determine which assets are referred to
assets that exist at time of death
how to determine which Bs are referred to
Bs existing at time of writing, not at time of death
how to interpret will
read as if it was written just before death
can the court rectify a will
only if admin error or failure to understand Ts instructions
how to interpret words in will
ordinary meaning
Ts intention is key
read in contect
if technical words give them their technical meaning
when will court look at evidence to determine meaning
part of will is meaningless
language is ambiguous
evidence other than intention shows language is ambiguous in light of context
evidence is only an aid - cannot re-write the will
what if words are included in will by mistake
court may allow it to be admitted to probate with those words admitted
reference to ‘my children’
defined by blood, includes adoption and illegitimate children
meaning of issue
direct descendants of any generation
what if a specific gift has changed
is it substantially the same? if it is they can still have it. if it has substantially changed then in fails.
ademption
failure of gift
impact of gender reassignment
if will was made before GR then GR is irrelevant
if will was made after GR then GR is relevant
if gift is different due to reassignment can apply to high court for order
PRs don’t need to see GR certificate
can trace into the hands of someone who received it unless bona fide purchaser
does a will need to be dated
not essential but advised
are alterations valid
if made before execution - valid (assume made after execution)
if made after execution - valid if initials of T and witness
if not initials then original will valid if words are apparent
if words not apparent it is invalid but rest of words that can be read are valid unless conditional revocation rule applies
what is a codicil
supplement to make a small change to a will
how to read will with codicil
as if whole will was executed at date of codicil
how to ensure a codicil is valid
execute it like a will
can a codicil be used to revive an old will
yes but intention to revive must be explicit (this is inferred by existence of codicil)
what if B dies before T
the gift falls to the residue (or if residue then intestate) unless substitutional B in will or if s33 applies
s33 - substitutional B
if gift to Ts issue fails because B died before T then B’s issue can inherit equally.
implied substitutional gift - overrulled by explicit substitutional gift in will
can B refuse to take a gift
yes can disclaim so falls to residue unless already recieved a benefit
S33 will apply as if B was dead
when does a gift in a will vest
on Ts death unless the will says otherwise
what if there is a gift to several Bs or a class of Bs, one of which dies before T
the gift doesn’t fail until all Bs have died so remaining Bs take all of the gift
unless there are severance words then remaining Bs only take their share and the share of dead B goes to residue
what if the order of the death of T and B cannot be ascertained
assume older died first
If T dies first it goes to bs estate
if B dies first gift fails and goes to residue
what if B killed T
then cannot benefit from gift. 3 months from conviction to appeal and will be allowed gift if justice demands it
does s33 apply when B forefits gift
forefit - B killed T
B treated as dying first so s33 applies
what is revocation
withdrawing or cancelling a will
can revocation be at any time
yes - just need capacity
methods of revoking a will
new will
marriage / divorce
destruction
codicil
does a new will always revoke an old will
yes to the extent they are different it is implied so not essential to have a revocation clause
can revocation be conditional
yes by new will or destruction
revocation is invalid if condition not met and original will valid instead
how to revoke a will by destruction
physical destruction is needed. symbolic destruction / crossing it out is not enough
need intention to revoke - if destruction is an accident it is not revoked
destruction must be by T or someone in their presence at their direction
what if the will is destroyed but not revoked
the court looks at all the evidence to establish content of will
does marriage always revoke a will
yes unless will states that it doesn’t
but must refer to marriage with specific person not marriage in general
if will anticipates marriage but marriage doesn’t happen is the will valid
yes unless it states it is conditional on the marriage
does changing CP into marriage revoke a will
no
how does divorce impact a will
treated as if spouse died before T
can T agree to never revoke their will
no - a will can always be revoked. even if they promise not to revoke it this is not binding (but might breach contract) unless mutual wills
how are mutual wills enforced
when first T dies there is a CT over the property of second T - second T can still deal with property (so might have nothing left on death) but cannot intend to disrupt CT
act which allows family and dependants to challenge distribution
inheritance (family and dependants)act 1975
when would you use the inheritance (family and dependants)act 1975
when you haven’t received anything or you are unhappy with the amount you have received
test to be awarded something under inheritance (family and dependants)act 1975
objective - T did not make reasonable provisions for you
who can claim under inheritance (family and dependants)act 1975
spouse (or former if not remarried or barred during divorce)
child - any age
person treated as child
maintained by T
cohabitee for 2 years immediately before death
who is a cohabitee before death
temp absence ok but must be commitment or permenance
who is a person maintained by T
must be settled arrangements
substantial contribution of money or money’s worth towards reasonable requirements
not for consideration
doesn’t have to be immediately before death
temp break is ok
how long do you have to apply under inheritance (family and dependants)act 1975
within 6 months of the grant
who pays a claim under inheritance (family and dependants)act 1975
court decides which B takes the loss
if nothing left in estate because PR distributed within 6 months then PR is liable to pay. if PR waited 6 months to distribute then not liable
what property can be used to satisfy a claim under inheritance (family and dependants)act 1975
all property passing through the will and any property passing through survivorship
what types of orders can be made under inheritance (family and dependants)act 1975
lump sum, periodic payments, specific property transfer
does it need to be for maintenance - inheritance (family and dependants)act 1975
not if it is spouse but yes if it is for anyone else then must be to maintain standard of living appropriate to them
