THE INTERPRETATION OF WILLS

Question 1

DATE FROM WHICH THE WILL SPEAKS

Answer 1

Subject to a contrary intention in the will, a gift in a will takes effect as if the will had been executed immediately before death (rather than at the date of the will). This can be su-perseded by use of the words “now” or “at present”. The benefciaries (‘objects’) of the will are determined as at the date of the will’s execution

Question 2

2

TYPES OF GIFTS

Answer 2

A legacy is a gift of personalty (personal property). A **devise **
is a gift of realty (real estate).

Question 3

5

types of legacies

Answer 3

1. Specifc Legacy
2. General Legacy
3. Pecuniary Legacy
4. Demonstrative Legacy
5. Residuary Legacy

Question 4

Specific Legacy

Answer 4

A specifc legacy is a gift of a specifed part of the estate that is clearly identifed at the time of the will’s execution.
EXAMPLE
“My BMW car registration number 123XYZ4 to my daughter”.This type of gift is subject to the doctrine of ademption , so, if the testator no longer owns that particular car at the date of death, then the gift fails.

Question 5

General Legacy

Answer 5

A general legacy does not identify a particular item.
EXAMPLE
“a BMW car”
The testator may or may not own a BMW car at the time of making the will. T**he doctrine of ademption does not apply **to general legacies. Therefore, if there is no BMW in the estate, the benefciary is entitled to require the executors to pur-
chase such a car if they have sufcient funds.

Question 6

Pecuniary Legacy

Answer 6

A pecuniary legacy is a gift of cash. Almost all pecuniary lega-cies are general (“£1,000 to the NSPCC”), but they could equal-ly be specifc (“£1,000 to the NSPCC payable from the £5,000 owed to me by John Doe”) or demonstrative

Question 7

Demonstrative Legacy

Answer 7

A demonstrative legacy is a general legacy which identifes **the source from which the gift is to be made.

EXAMPLE
“£1,000 to the NSPCC to be paid from my savings account held at ABC Bank”.
If the account is closed at the date of death or no longer has sufficient funds to meet the legacy, the charity can look to the executors to meet any shortfall from other cash or assets in
the estate.

Question 8

Residuary Legacy

Answer 8

A residuary legacy is everything that is left of the deceased’s estate, not otherwise disposed of by other gifts or taken up
by the payment of liabilities and the costs of administration.

Question 9

2

FAILURE OF GIFTS

Answer 9

1. ademption
2. Lapse

Question 10

ademption

Answer 10

1. Under the doctrine of ademption, a specifc gift will fail (or ‘adeem’) if it is no longer part of the testator’s estate, is sub-ject to a binding contract for sale, or no longer meets the de-scription in the will.
2. A **change in the substance **of the subject matter of a specifc gift causes that gift to adeem, but a mere change in the name or form does not.
   EXAMPLE
   The testator makes a specifc legacy of ordinary shares in ABC plc owned by them at the date of their will. The shares are in some way altered, due to an amalgamation or recon-struction of the company during the testator’s lifetime, but they represent the same shares in the company. The gift does not adeem.

By contrast, if ABC plc is acquired by another company and the shareholders are given shares in the acquiring company as payment for their shares in ABC plc, then the substance of the subject matter changes and the gift then adeems.

Question 11

changes in assets before death

Answer 11

Problems can arise when the testator makes a specifc gift of an asset described in the will but before their death acquires a diferent item which meets the same description—for exam-ple,** a gift of “my car”**. The basic rule of succession is that a will speaks from the date of death unless a contrary intention is apparent in the will. By referring to “my car”, the testator is usually taken to have shown a contrary intention, though this construction may vary according to the circumstances. If the property is such that it can vary in value—for example, “all my jewellery”—the testator will usually be taken to have made a gift of any items satisfying the description at death.
Exam Tip
Examiners often like to test on exceptions to general rules, so it would not be surprising to see a gift of ‘my car’ on your exam. Remember, generally the will speaks at the time of the testator’s death unless a contrary intention is shown. However, courts usually presume a contrary intention when the gift is of ‘my car’. It will usually be presumed to mean the car the testator had when the will was written, so if that car is gone, the gift will adeem. A testator can avoid such a result with language such as ‘the car I own on my death”.

Question 12

2

Lapse

Answer 12

1. If a benefciary has predeceased the testator, the gift will lapse (that is, fail). 2. However, it is common practice to include a substitutional gift in the will.
2. If the substitutional gift is effective, the gift will go to the substitute benefciary and will not lapse. Otherwise, the subject matter of the gift falls into the residue. If a residual gift lapses, it passes under the rules of intestacy

Question 13

Will Construed at Date of Execution

Answer 13

There is a presumption that, as regards people, a will is construed at the date of execution. For example, a gift made to “the eldest son of Jacob” is construed as a gift to the person fulflling that description at the date the will is made. If that
person dies before the testator, the gift does not pass to the eldest surviving son of Jacob.

Question 14

2

Gifts to Joint Tenants

Answer 14

1. A gift by will to two or more people as joint tenants will notlapse unless all the recipients die before the testator. So, if agift is made “to A and B jointly” and A dies before the testator,the whole gift passes to B.
2. By contrast, if the gift is “to A and B** in equal shares” (that is, there are words of severance) **and Adies before the testator, A’s share lapses and B takes only one share. The lapsed share will pass under the intestacy rules (subject to a substitutional gift being included in the will).

Question 15

Survival of Benefciaries

Answer 15

It is common for gifts in wills to be made conditional upon the survival of a benefciary (other than a surviving spouse) for a specifed period of time,** usually 28 or 30 days,** after the death of the testator. The gift fails if the benefciary fails to survive for the specifed number of days.

Question 16

Simultaneous Death

Answer 16

In circumstances where it is impossible to determine who died frst out of the testator and a benefciary, the law of ‘commorientes’ provides that, for succession purposes, the younger person survives the elder.

Question 17

4

Gifts to Deceased Issue

Answer 17

1. If a gift is made to the testator’s child or other issue (re-moter lineal descendants, such as grandchildren or great **grandchildren) who dies before the testator and who leaves living issue, the living issue will receive the gift.
2. This includes children who are ‘en ventre sa mère’—conceived but unborn. Unless a contrary intention is shown in the will,
3. the issue will take ‘per stirpes’, and if more than one in equal shares. Per stirpes means ‘through the root’ and indicates that the issue of the deceased person will split the deceased person’s share.
4. Note that the rule saving the gift for issue of the testator does not save gifts to benefficiaries** other than the testator’s issue.**
   EXAMPLE
   Maria’s will leaves her estate to her three sons, Adam, Byron, and Charles equally. Charles predeceases her. He had two daughters, Diana and Eva. On Maria’s death, Adam and Byron will inherit one-third each. Charles’s share will be divided equally between Diana and Eva.

COMPARE
The testator’s will contained the words** “to such of them my daughters…as shall survive me”,** and the clause containing those words went on to provide “and if more than one in equal shares”. The testator had three daughters. One prede-ceased the testator but that daughter was survived by her own daughter (the testator’s granddaughter). The court held that the language was sufcient to show that the testator did not want the deceased daughter’s share to go to her issue. Therefore, the gift was given only to the two surviving daughters.

Question 18

2

Gifts to Witnesses

Answer 18

1. A gift in a will fails if the beneficiary or the beneficiary’s spouse or civil partner witnesses the will. The will itself re-mains valid.
2. However, the gift will not fail if, ignoring the attestation by the benefciary or spouse or civil partner, there are at least two other witnesses who are not benefciaries or their spouses or civil partners.

Question 19

GIFTS TO CHILDREN
Definition of Children

Answer 19

The term ‘children’ includes legitimate, illegitimate, and ad-opted children—but not stepchildren.

Question 20

Class Gift
Gifts to children

Answer 20

1. A class gift is a gift of prop-erty to be divided among benefciaries who fulfll a general description—for example, “£100,000 to the children of Kevin” or “£100,000 to the children of Kevin who attain the age of 18”. The problem is how to divide the gift between the rele-
   vant benefciaries.
2. The same issue arises where there is an individual gift to the members of a class—for example, “£10,000 to each of the children of Kevin”. Until Kevin’s death we do not know how many benefciaries will qualify for the gift.

Question 21

4

Class Closing Rule
Gifts to Children

Answer 21

1. ‘Class closing’ rules have developed for vested (no condition needs to be satisfied) and contingent (for example, where a specifed age needs to be attained) gifts.
2. These rules apply unless the will provides otherwise.
3. When a class closes, it excludes any potential beneficiary not then living.
4. The rules are complex in this area.** Normally, a class will close when at least one benefciary has a vested interest—to the exclusion of any potential benefciary not then living (‘living’ includes a child already conceived and subsequently born alive**).
   EXAMPLE
   “£5,000 to the children of Zebedee”.
   The class closes at the date of the testator’s death if there is any child of Zebedee then living. If not, the class remains open until the death of Zebedee.

COMPARE
“£5,000 to the children of Zebedee who attain the age of 18”. The class closes at the testator’s death if any such child has already reached 18. It will include those children already over 18 and any others then under 18 who later reach that age. If no beneficiary is yet aged 18, the class remains open until the first benefciary reaches 18, whereupon it closes around that child and any others then living who later reach 18.

COMPARE
“£5,000 to each of the children of Zebedee who attain the age of 18”.The class** closes at the date of the testator’s death.** If no children exist at that point, the gift fails. Strictly speaking, this is not a class gift as the size of each beneficiary’s entitlement is fixed and does not vary according to the number of class members. However, such a gift shares many of the practical problems of true class gifts—the personal representatives are likely to have difficulty distributing the estate as they will not know how large a fund to retain. In the absence of any provision to the contrary, the class closes at the date of the testator’s death and includes only children then living. The object of this rule is to allow the personal representatives to distribute the estate.

Question 22

Will May Exclude Class Closing Rules

Answer 22

A will may exclude the class closing rules through a specifc provision therein.
EXAMPLES
1) “To the children of Robert living at my death”.
2) “To my grandchildren, whenever born”.