Legacies Devises failure and Forfeiture of gifts

Question 1

Specific Legacy (bequest)

Answer 1

The gift of a distinguishable item from a person’s possessions.
This will fail to take effect (ADEEM) if that person no longer owns the specific item at their death.

Question 2

A Will Speaks From the Date of Death

Answer 2

Section 24 Wills Act 1837 provides that a Will speaks from the date of death unless a contrary intention is shown.
The word ‘my’ is deemed to be a contrary intention ie the one owned at the time of making the will – Re:Sikes 1927.if no longer owned the gift fails
Absence of the word ‘my’ means the gift will be construed as a general gift Ie any owned at the date of death Re: Willcocks 1921 & Re: Rose 1949 and if not owned would need to be brought from the estates money.
For clarity the phrase ‘any XXX owned by me at my death’ is often used.
A legacy of a new Seiko Titanium watch would compel the executors to buy the beneficiary a Seiko Titanium watch.

Question 3

Demonstrative Legacy

Answer 3

Legacy payable from an identified fund.
ie TSB bank account
Does not fail (Adeem) if the fund does not exist but becomes a general legacy and is payable from residue – Asburner v Macguire (1786)

Question 4

General Legacy

Answer 4

The gift of an item not generally distinguishable from the rest of the estate.
Usually pecuniary (a gift of money)
Interest is payable on general legacies from the end of the ‘Executors Year’ until the date of payment of the legacy. Current rate is 0.1% per annum simple.

Question 5

Pecuniary Legacy

Answer 5

A gift of an amount of money

Question 6

Lifetime Interest Legacy

Answer 6

A gift of income for life or A right of residence, With remainder to other beneficiaries.
Ie I give to my friend Mariam the income from my rental property 123 Acacia Avenue for her lifetime and after her death I give the property 123 Acacia Avenue to my friend Michaela absolutely.

Question 7

Residue

Answer 7

Disposes of everything else not otherwise disposed of by the Will.
Carries all income and profits from the date of death.
Always as percentages – you don’t know what you will own when you die but you will own 100% of it.

Question 8

Class Legacies

Answer 8

Class Gifts – same gift to all in a class ie to each of my grandchildren living at my death- warning also includes those not known about

Question 9

Gifts to Pets

Answer 9

Pets are Chattels and can not own property/money - Gift is given to a human under trust to provide for the welfare of the pet

Question 10

Contingent

Answer 10

Contingent – a gift that is given when something happens. - Ie £1000.00 to my grandchild Alex when they reach 18 if fails to reach 18 gift fails and falls into the residue

Question 11

Conditional gift

Answer 11

Conditional a gift that is given if something happens ie £1000.00 to my Grandson Scott when he passes his driving test - if doesn’t pass test gift fails and falls to the residue

Question 12

Non provision Clause

Answer 12

Used to exclude people/class of people - Will published so can cause libel

Question 13

S33 Wills act provides

Answer 13

If a gift fails to a direct descendant due to predeceased gift can be saved if had issue of their own - Per Stipes ( Applies unless specifically excluded)

Question 14

Ademption- specific gift

Answer 14

A specific gift fails by ademption if it no longer forms part of the estate.
If the gift and the testator perish at the same time the testator is deemed to have survived the chattel Durrant v Friend (1852), Re: Barrys Estate (1952)
If the gift is subject to a binding contract for sale at the testators death the beneficiary shall not be entitled to the proceeds – the rule in Lawes v Bennet (1785)

Question 15

Lapse

Answer 15

A gift lapses if the recipient of the gift
Has predeceased the testator
Is a former spouse who has divorced the testator and a decree absolute has been issued – S18A Wills Act 1837 as amended by s3 Law Reform (succession) act 1995
S15 Wills Act 1837 Applies

Question 16

Class Gifts - lapse

Answer 16

The doctrine of lapse does not apply to class gifts.
Pearks v Mousley (1880) – A gift to several persons, number unknown at the time of limitation who answer to a general description and who take in proportionate shares the size of which will vary according to the number who ultimately answer the description.

Question 17

Abatement

Answer 17

Occurs when there are insufficient assets in the estate to meet debts and legacies.
Residue Abates First
General Legacies
Specific and demonstrative legacies
All ‘abate rateably’ – in proportion

Question 18

Payment of Debts

Answer 18

There is a statutory order to the payment of Debts.
Funeral & Testamentary Expenses
Secured Debts
Specially Preferred debts (money held by the deceased as an officer of a friendly society)
Preferential Debts
Arrears of state and occupational pension contributions
Money owed to Employees in respect of Salary and accrued Holiday Pay
Ordinary Debts
Interest
Deferred Debts (includes loans due to spouses)

Question 19

Disclaimed Gifts

Answer 19

Any beneficiary may Disclaim their entitlement under a Will (give it up)
Disclaimed gifts fall into residue unless there is a substitutionary provision

Question 20

Forfeiture

Answer 20

Rule of Public Policy that precludes a person who has unlawfully killed another from acquiring benefit as a result of the deed. Effectively treating the murderer as having predeceased.
General principle confirmed in Gray v Barr (1971) – no man should be allowed to profit at someone else’s expense from his own conscious and deliberate crime.
S2 Forfeiture Act 1982 gives the courts discretion to vary the rule, but not in favour of the murderer
S3 Forfeiture Act 1982 provides that the forfeiture rule shall not preclude any claim under the Inheritance (Provision for family and dependents) Act 1975