Interps, rectification, variation

Question 1

when do you use extrinsic evidence

Answer 1

when the will or a provision in the will is ambiguous or uncertain and the intention of the testator has to be determined by means other than the wording of the will. (Will v The Master)
If the wording of the will is clear, extrinsic evidence to prove a contra intention of the testator is inadmissible.

Question 2

when do you use armchair evidence

Answer 2

Armchair evidence may even be admissible where there is no ambiguity or uncertainty regarding the contents of the will.

Question 3

what is the purpose of armchair evidence

Answer 3

The purpose of armchair evidence is to give meaning to the stated words of the testator it cannot be used to determine what the testator intended to write.

Question 4

what is a latent ambiguity

Answer 4

Arises when the testator has identified a subject and an object of the bequest, but the bequest is worded in such a way that it could be equally applicable to another subject or object.

Question 5

what is the test to read words into a will

Answer 5

1. The deduction or implication must be a necessary implication which does not lend itself to a contrary intention.
2. The deduction or implication must be in accordance with the contents of the will.

Question 6

what ambiguities do armchair evidence apply to

Answer 6

latent and patent ambiguities

Question 7

what is a lowkey and chill explanation of armchair evidence

Answer 7

A court places itself in the position of the testator during the time of the making of her will to try to determine the intention of the testator.
The court projects itself into the armchair of the deceased and considers the provisions of the will in light of all the material facts known or likely to have been known by the deceased at the time when she made the will.

Question 8

what is extrinsic evidence

Answer 8

1. Evidence obtained outside of the will itself; evidence of facts that do not appear from the will itself
2. If the wording of a will is clear, extrinsic evidence to prove a contra intention of the testator is inadmissible•
3. no evidence can contradict the intention (rule against extrinsic evidence) only permissible where the will is so obviously vague (for example were one needs to interpret foreign language, scientific terms, illegible words, nicknames, etc).

Question 9

presumptions

Answer 9

1. Writing or typing prevails over standard form wills.
2. Presumption against intestacy
3. Ambulatory nature of a will
4. Immediate vesting, acceleration of benefits, finality of institution, maximum benefit and minimum burden
5. Presumption against disinherison and inequality

Question 10

what is the general rule for the variation of a will

Answer 10

the court will not after the death of a testator vary the provisions of a will that are operative and in accordance with the law and good morals.

Question 11

5 examples of circumstances for variation

Answer 11

1. Where the circumstances of a case make it practically impossible or utterly unreasonable to fulfil the testator’s intentions.
2. Where the strict enforcement of the testator’s directions would result in a failure of the testator’s bequests or would result in the testator’s intentions being frustrated.
3. Where the testamentary mechanisms mentioned in the will are unable to realise the intentions of the testator and/or would result in severe loss to the estate.
4. Where the circumstances of a case demand a departure from the will.
5. Where the testator makes dispositions, but the dispositions are based on mistaken assumptions about the testator’s assets or liabilities.

Question 12

how to justify a variation

Answer 12

An applicant would have to show a change or circumstance, not contemplated by the deceased, causing prejudice to the estate and/or the beneficiaries.

Question 13

ex parte sidelsky

Answer 13

• The testator executed a will in 1944.
• In the will, he provided for an amount of £75 to be paid to his daughter for her upkeep.
• This amount was increased by the court to R1500 with provision for an inflation-linked annual increase based on changes to the consumer price index.
• This was to take into account the intention of the deceased to provide a reasonable amount of money for his daughter to maintain herself.
• There are many cases where the courts have allowed variation of wills on account of unforeseen changed in circumstances.

Question 14

what is rectification

Answer 14

Arises where there is an error in the will, T did not correctly state his intentions – because of an error. Involves correcting clerical errors or adding or deleting words that were omitted or inserted by mistake, or as a result of duress or undue influence. This can only be effected by a court.

Question 15

3 ways of rectifying by a court

Answer 15

By correcting a clerical mistake or typing error.
By deleting words.
By inserting words.

Question 16

how does a court decide whether to rectify the will

Answer 16

Court would have to be satisfied on a balance of probabilities that a will does not reflect the true intentions of the testator.
Evidence would have to be presented as to what their intentions were.

Question 17

golden rule of interpretation

Answer 17

The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these are ascertained, the Court is bound to give effect to them, unless [it is] prevented by some rule or law from doing so

Question 18

statutory rules of interpretation S2 B

Answer 18

dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of the marriage.

Question 19

S2 D Wills act presumptions

Answer 19

• adopted child treated normal
• born out of wedlock = ignored
• nasciturus can benefit

Question 20

in S 2D (1) of wills act : when interpreting a will , importance ?

Answer 20

1. When interpreting a will = these rules will automatically apply unless the testator has expressly or impliedly intended that they do not apply.
2. These statutory interpretive rules trump common law rules in so far as there is a conflict between the common law and statutory rules.
3. “shall” = mandatory

Question 21

common law rules interps 1: explain:• Words should be interpreted according to their usual grammatical meaning/ordinary and plain meaning

Answer 21

• If the words of the t are unambiguous, the court must give effect thereto even if the testator’s dispositions are capricious, unreasonable, unfair, inconvenient or even absurd.
• Only where the words bear two or more meanings and there is no other evidence suggesting what the testator had in mind will the courts lean in favour of a construction that is rational, convenient and reasonable.
• Words should be interpreted according to their usual dictionary meaning and technical terms should be interpreted according to their legal meaning

Question 22

common law rules interps: rule 2 technical and ordinary meaning

Answer 22

• If the words have both an ordinary and technical meaning they must be given their ordinary meaning unless the intention of the testator proves otherwise

Question 23

common law interps 3: same word

Answer 23

• If the same word is used many times in a will, it is presumed that the testator intended the word to convey the same meaning on each occasion that it is used unless the context indicates otherwise

Question 24

common law interps 4: lay person

Answer 24

Distinction between a legal person drafting a will and a layperson drafting a will.

Question 25

iusidem generis

Answer 25

• when a testator lists a series of qualifying words, a meaning is ascribed to each word having regard to the words preceding and following the word.

Question 26

other NB rules for interps lol

Answer 26

1. Attention must be paid to grammar, punctuation and paragraphs.
2. Clauses that have been erased or cancelled and are therefore revoke
   may not be considered when interpreting a will.
3. Words and phrases must also be given the meaning that they had when the will was made.
4. Courts are hesitant to strike down wills or provisions in wills just because they seem uncertain.