U2: Interpretation, Alteration, and Revocation Flashcards
Whose intentions are sought when interpreting a will?
The Testators intentions
What are the basic presumptions that apply when interpreting a will?
- Non-technical words bear their ordinary meanings.
- Technical words are given their technical meanings.
Will the Courts take into account extrinsic evidence?
The basic rule is that the court will not consider any other evidence.
Thus, in most cases where the meaning remains unclear, the gift will usually fail for uncertainty.
However, where the will is meaningless (no meaning at all, rather than unclear), or the language used is ambiguous the court may consider extrinsic evidence.
Example: Thorn v Dickens
A will said ‘all to mother’
But the man’s mother was dead at the time of writing the will.
So they accepted other evidence that showed the testator was in the habit of referring to his wife as his mother, as there was no one else fitting that description, the will was made.
What is extrinsic evidence?
Extrinsic Evidence is information that is relevant to a legal document but is not included in the document itself.
Can a Court rewrite a will?
The Court cannot re write a will to go against the testators intention.
The Court can however rectify a will where the testators intentions are clear, but the wording does not carry them into effect in 2 circumstances:
1- A clerical error (Where something is written or omitted by mistake)
2- Misunderstood instructions (Where a solicitor misunderstood the testators instructions and intentions and wrote the will to that affect)
When do wills ‘speak’ in realtion to property?
The will speaks from the date of death.
For example, ‘all property’ would mean all property the testator owns on his death, not what he owned when he wrote the will.
When do wills ‘speak’ in relation to people?
The will speaks from the date of execution - ie when it was written
For example, ‘My boss’ would be the boss when it was written, not the testators boss on death
What is the general rule in realtion to family beneficiaries?
Such gifts are taken to apply to blood relations unless proved otherwise.
For example ‘My children’ would mean blood children, not children-in-law from a new marriage (ie new wife previous children)
Are adopted children classed as ‘my children’ for a will’
Yes. Adoptive children are classed as ‘my children’ for the purposes of a will.
