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Wills > interpreting the will > Flashcards

interpreting the will Flashcards

1
Q

property that does not pass through a will

A

survivorship property
pension benefit
insurance written in trust
trust property - dissolve according to terms of trust

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2
Q

testator and testatrix

A

testator - male

testatrix - female

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3
Q

executor or administrator

A

executor - will

administrator - no will

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4
Q

the order in which property should be dealt with

A

property passing outside of will
property passing inside of will
intestate property

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5
Q

legacies

A

gifts of personalty

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6
Q

devise

A

gift of reality

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7
Q

specific gift

A

gift of a specific item - if it is substantially different it will fail

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8
Q

general gift

A

item corresponding to description - if no longer has item use funds from estate to get it

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9
Q

demonstrative gift

A

general in nature but paid out of a specific funds - if fund no longer exists then pay out of rest of estate

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10
Q

pecuniary gift

A

gift of money

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11
Q

residue gift

A

everything left over

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12
Q

where does the property go when a gift fails

A

the residue

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13
Q

what happens to a will following divorce

A

gifts fail - not just separation though, must be divorce

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14
Q

how to determine which assets are referred to

A

assets that exist at time of death

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15
Q

how to determine which Bs are referred to

A

Bs existing at time of writing, not at time of death

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16
Q

how to interpret will

A

read as if it was written just before death

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17
Q

can the court rectify a will

A

only if admin error or failure to understand Ts instructions

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18
Q

how to interpret words in will

A

ordinary meaning
Ts intention is key
read in contect
if technical words give them their technical meaning

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19
Q

when will court look at evidence to determine meaning

A

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

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20
Q

what if words are included in will by mistake

A

court may allow it to be admitted to probate with those words admitted

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21
Q

reference to ‘my children’

A

defined by blood, includes adoption and illegitimate children

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22
Q

meaning of issue

A

direct descendants of any generation

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23
Q

what if a specific gift has changed

A

is it substantially the same? if it is they can still have it. if it has substantially changed then in fails.

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24
Q

ademption

A

failure of gift

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25
Q

impact of gender reassignment

A

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

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26
Q

does a will need to be dated

A

not essential but advised

27
Q

are alterations valid

A

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

28
Q

what is a codicil

A

supplement to make a small change to a will

29
Q

how to read will with codicil

A

as if whole will was executed at date of codicil

30
Q

how to ensure a codicil is valid

A

execute it like a will

31
Q

can a codicil be used to revive an old will

A

yes but intention to revive must be explicit (this is inferred by existence of codicil)

32
Q

what if B dies before T

A

the gift falls to the residue (or if residue then intestate) unless substitutional B in will or if s33 applies

33
Q

s33 - substitutional B

A

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

34
Q

can B refuse to take a gift

A

yes can disclaim so falls to residue unless already recieved a benefit
S33 will apply as if B was dead

35
Q

when does a gift in a will vest

A

on Ts death unless the will says otherwise

36
Q

what if there is a gift to several Bs or a class of Bs, one of which dies before T

A

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

37
Q

what if the order of the death of T and B cannot be ascertained

A

assume older died first
If T dies first it goes to bs estate
if B dies first gift fails and goes to residue

38
Q

what if B killed T

A

then cannot benefit from gift. 3 months from conviction to appeal and will be allowed gift if justice demands it

39
Q

does s33 apply when B forefits gift

A

forefit - B killed T

B treated as dying first so s33 applies

40
Q

what is revocation

A

withdrawing or cancelling a will

41
Q

can revocation be at any time

A

yes - just need capacity

42
Q

methods of revoking a will

A

new will
marriage / divorce
destruction
codicil

43
Q

does a new will always revoke an old will

A

yes to the extent they are different it is implied so not essential to have a revocation clause

44
Q

can revocation be conditional

A

yes by new will or destruction

revocation is invalid if condition not met and original will valid instead

45
Q

how to revoke a will by destruction

A

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

46
Q

what if the will is destroyed but not revoked

A

the court looks at all the evidence to establish content of will

47
Q

does marriage always revoke a will

A

yes unless will states that it doesn’t

but must refer to marriage with specific person not marriage in general

48
Q

if will anticipates marriage but marriage doesn’t happen is the will valid

A

yes unless it states it is conditional on the marriage

49
Q

does changing CP into marriage revoke a will

A

no

50
Q

how does divorce impact a will

A

treated as if spouse died before T

51
Q

can T agree to never revoke their will

A

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

52
Q

how are mutual wills enforced

A

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

53
Q

act which allows family and dependants to challenge distribution

A

inheritance (family and dependants)act 1975

54
Q

when would you use the inheritance (family and dependants)act 1975

A

when you haven’t received anything or you are unhappy with the amount you have received

55
Q

test to be awarded something under inheritance (family and dependants)act 1975

A

objective - T did not make reasonable provisions for you

56
Q

who can claim under inheritance (family and dependants)act 1975

A

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

57
Q

who is a cohabitee before death

A

temp absence ok but must be commitment or permenance

58
Q

who is a person maintained by T

A

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

59
Q

how long do you have to apply under inheritance (family and dependants)act 1975

A

within 6 months of the grant

60
Q

who pays a claim under inheritance (family and dependants)act 1975

A

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

61
Q

what property can be used to satisfy a claim under inheritance (family and dependants)act 1975

A

all property passing through the will and any property passing through survivorship

62
Q

what types of orders can be made under inheritance (family and dependants)act 1975

A

lump sum, periodic payments, specific property transfer

63
Q

does it need to be for maintenance - inheritance (family and dependants)act 1975

A

not if it is spouse but yes if it is for anyone else then must be to maintain standard of living appropriate to them

Wills (5 decks)

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