UNIT 2: ALTERATIONS

Question 1

How are wills interpreted?

Answer 1

• Interpretation is through language itself, 2 basic presumptions:
• Non-technical words bear their ordinary meaning
• Technical words are given their technical meaning (Re Cook)
• Presumptions may be rebutted if clear that testator used in different sense – testator can use words in their own way provided clear that it was what they intended, courts cannot invent meanings.

Question 2

When is extrinsic evidence permitted? What statute governs this?

Answer 2

s21 Administration of Justice Act 1982:
* Permits extrinsic evidence (including evidence of declarations made by the deceased) to be admitted to interpret the will insofar as any part of the will is meaningless or the language used is ambiguous or evidence (other than evidence of the testator’s intention) shows that the language is ambiguous in the light of the surrounding circumstances.
* 2-STEP PROCESS: case must come within one of the three options in s 21(1). Only then will the court look at extrinsic evidence, including evidence of the testator’s intention. In any event the extrinsic evidence is only an aid to interpretation, it cannot be used to rewrite the will.

Question 3

What governs rectification of wills?

Answer 3

s20 Admin of Justice Act 1982 court must be satisfied that will fails to carry out testator’s intentions because:
o Of a clerical error (ie writing/omitting something by mistake)
(Joshi v Mahida: ‘my one half share’ should have been ‘one half of my share’ )
o Of a failure to understand his instructions: Sprackling v Sprackling draft will showed that testator meant parcel of land not whole farm, rectified
* S20 VERY NARROW: not possible to rectify will b/c solicitor misunderstood law/ thought words chosen achieved desired outcome.
* If words included in will by mistake, court may allow will to be admitted to probate with words omitted.

Question 4

How does property pass under a will?

Answer 4

• Basic rule s24 Wills Act 1837, assets are determined according to those in existence at the date of death – speak from date of death – will is interpreted as if it had been executed immediately before death.
  o Ie, ‘all my estate’ disposes of all property owned WHEN THEY DIED, whether or not they owned it at the time will was made.
• Will speaks from date of death unless contrary intention is shown by particular words, ie ‘present’, house which I ‘now’ own, ‘my’ may be at date of will but if generic ie collection, means cars in collection at date of death.

Question 5

How are beneficiaries + family identified?

Answer 5

• S24 only applies to property, but beneficiaries are construed as people alive at time of will’s execution subject to contrary intention, ie even if beneficiary predeceases testator.
  Family relationships
• Gifts to ‘my x’ general rule – refers to blood relationships, not those of spouse/civil Ie step children or those of cohabitant. Rule will not apply if will provides otherwise.
• Reading v Reading : ‘issue’ also applied to step-children; sufficient evidence of intention them sharing legacy with children as will included substitutional gift of residue to both his children and step-children if 2nd wife predeceased + general wording suggested sharing in both cases.

Question 6

Special rules relating to children?

Answer 6

• Issue normally means direct descendants ie children/grand/great-grand
• Adopted children normally treated as children of adoptive parents unless will provides otherwise: adopted child would be included within description of ‘Children’ in adoptive parents’ will, but not in the will of their birth parent (but if a child is adopted before their interest in an estate becomes vested, their interest is unaffected by the adoption). Subject to a contrary intention shown in the will.
• Re succession to property under modern wills, irrelevant whether or not a child’s parents are married to each other  gift of ‘my estate to my sons in equal shares’ would include not only the testator’s two sons from his marriage, but also the son born as the result of an extra- marital affair. This is subject to a contrary intention shown in the will.
• There are special rules which apply to determine the parentage of children born as a result of assisted reproduction under the Human Fertilisation and Embryology Act 2008; ‘my children’ will include any children of whom the testator is a legal parent under the Act.

Question 7

How does the Gender Recognition Act 2004 impact an individual with a Gender Recognition Panel Certificate?

Answer 7

• Gender Recognition Act 2004: individual with full gender certificate from GR Panel legally recognised in their acquired gender – s15: does not affect disposal or devolution of property under will or other instrument made before 4 April 2005.
• It will do so if will or other instrument is made after that date.

if will made on or before 4 april 2005, x cannot share estate as ‘niece’ if got certificate in 2020, but can do if will made after date.

• S18 where disposition of any property under will or other instrument (made on or after the appointed day) is different from what it would be but for the fact that a person’s gender has become the acquired gender under Act, an application may be made to the High Court where expectations have been defeated.
  o If court satisfied that it is just to make an order, wide discretion ie lump sum/transfer or settlement of property.

Question 8

How are trustees and personal representatives protected under the Gender Recognition Act 2004?

Answer 8

• Trustees + PRs protected under s17 from:
  o a) being under any duty to enquire whether a full gender recognition certificate has been issued or revoked before conveying or distributing any property, and
  o b) being liable to any person by reason of a conveyance or distribution of property made without regard to whether a full gender recognition certificate has been issued to any person or revoked without trustee or PR having been given prior notice.
• Does not prejudice right of person to follow property or any property representing it into hands of other person who has received it unless that person has purchased it for value in good faith and without notice.

Question 9

What generally happens when a gift fails?

Answer 9

• Basic effect = subject matter falls into residuary estate and will be taken by the residuary beneficiary. Where a gift of residue fails, there will be a partial intestacy and the residuary estate will pass under intestacy rules.

Question 10

How does a gift fail for uncertainty?

Answer 10

• If it is not possible from wording to identify subject matter of gift or recipient, gift will fail for uncertainty. But court will first seek to establish intentions + consider rectification first. Exception = gift to charity which does not sufficiently identify charity; provided that gift is EXCLUSIVELY FOR CHARITABLE PURPOSES, court can direct which charity.

Question 11

What will happen if a beneficiary or their spouse/civil partner witnesses the will?

Answer 11

• S15 Wills Act 1837: if a beneficiary or their spouse or civil partner acts as witness, gift to beneficiary fails.
• BUT beneficiary or spouse/civil partner remains a competent witness + will is validly executed; witness should be impartial though
• witness may be called upon to give evidence as to the manner of execution and it would be wrong for them to have a vested interest in proving the will to be valid.
• Gift will also fail if witnessed by spouse – whom beneficiary was married at the time will was executed; s15 does not cater for others ie child/cohabitant/subsequently marries.

Question 12

What happens if the will is validly executed without the signature of the beneficiary/spouse/civil partner?

Answer 12

• Gift will not fail if if will is validly executed without beneficiary’s signature (or that of spouse/civil partner)  if 3 witnesses, one beneficiary, gift effective even if signature ignored.
• Gift will not fail if there is a codicil which confirms original will + is not witnessed by beneficiary or spouse or partner.

Question 13

What happens during divorce or dissolution?

Answer 13

• Where after the date of the will the testator’s marriage or civil partnership is dissolved, annulled or declared void, ‘any property which, or an interest in which, is devised to the former spouse or civil partner shall pass as if the former spouse or civil partner had died’ on the date of the dissolution or annulment of the marriage or civil partnership (ss 18A and 18C Wills Act 1837)
• Sections 18A and 18C only apply where a marriage has been dissolved or annulled by the court. If the couple simply live apart, the gift and appointment remain valid.

Question 14

When will a gift be adeemed?

Answer 14

• Specific legacy (ie a gift of a particular item or group of items of property) will fail if the testator no longer owns that property at death - ‘adeemed’, b/c property has been sold, given away or destroyed during the testator’s lifetime.
• Asset may change in nature, ie specific gift of shares, company taken over so shareholding changed in new company  question is whether asset is substantially the same – simple name/form change or in substance? Adeemed if change in substance.
• Where testator disposes of property described in specific gift before death acquires different item of property which has same description, ie original thing replaced  presumption is that testator intended that gift was particular asset owned at date of will so adeemed, but ‘my’ car/piano may show contrary intention s23 WA, may vary re respective values of original and substituted assets.

Question 15

What are the rules for assets that are capable of increase/decrease? IE my shares, my jewellery?

Answer 15

• If property is capable of increase/decrease (my shares, jewellery) testator will normally be taken to have made a gift of any items satisfying description at death.
  o Replacement jewellery after insurances monies counts
  o But if specific ‘my pearls’, cannot take replacement
  o No right to insurance money before purchase of replacement assets

Question 16

What is a codicil?

Answer 16

• Testator may wish to add to or change a will in a minor way; may execute a codicil.
• A codicil is a supplement to a will which, to be valid, must be executed in the same way as a will; it republishes the will as at the date of the codicil – if testator makes a will in 1990 leaving ‘my gold watch’ to a legatee, loses the watch in 2000 and replaces it, the gift of the watch in the will is adeemed. If, however, the testator executes a codicil to the will in 2003, the will is read as if it had been executed in 2003 and so the legatee will take the replacement watch.

Question 17

General rules about lapses?

Answer 17

• Basic rule = gift lapses if beneficiary dies before testator; property falls into residue unless testator provides for possibility of lapse through substitutional gift.
• If a gift of residue lapses, property passes under intestacy rules, unless substitutional gift is in will.
• Where no conditions to the contrary imposed in will, gift vests on testator’s death; provided beneficiary survives testator (however short time) the gift takes effect.
• If beneficiary dies soon after, property passes to beneficiary’s estate.
• Contrary intention can be shown by wording it to say that whoever is holder of a position or office at date of death, property passes to them.
• The general rule is that, as regards people, a will ‘speaks from the date of execution’. A gift made to ‘the eldest son of X’ is taken to mean a gift to the person fulfilling that description at the date the will is made.
  o If that person dies, the gift does not pass to the eldest surviving son.
  o However, if the testator makes a codicil to the will, it republishes the will and the will is treated as made at the date of the republication. Hence, if the eldest son dies between the date of the will and the codicil, the will is construed as referring to the person who is the eldest son at the date of the codicil.

Question 18

What is the law of succession?

Answer 18

S184 LPA 1925:
* If deaths of testator + beneficiary v close together, law of succession does not accept that two people die at same instant.
* If order of deaths cannot be proved s184 deems that elder of two died first.
* If the testator was older than the beneficiary, the gift takes effect and the property passes as part of the beneficiary’s estate.
* Scarle v Scarle: forensic evidence not sufficient showing wife may have died first so presumption applied and wife’s daughter inherited house by survivorship (JTs).

Question 19

What is a survivorship clause?

Answer 19

• Commonly, gifts in wills are made conditional upon the survival of the beneficiaries for a specific period of time, such as 28 days. These survivorship provisions prevent a gift from taking effect where the beneficiary survives the testator for only a relatively short time or is deemed to have survived by s 184. As with any other contingent gift, if the beneficiary fails to satisfy the contingency, the gift fails.

Question 20

What happens if a gift to more than one person lapses? Is there an exception?

Answer 20

Lapse of gifts to more than one person
* A gift by will to two or more people as joint tenants will not lapse unless all the donees die before the testator. If a gift is made ‘to A and B jointly’ and A dies before the testator, the whole gift passes to B.
* If the gift contains words of severance, for example ‘everything to A and B in equal shares’, this principle does not apply. If A dies before the testator, A’s share lapses and B takes only one share. The lapsed share will pass under the intestacy rules unless testator included a substitutional gift to take effect if one of the original beneficiaries predeceased.
* If the gift is a class gift (eg ‘to my nieces and nephews equally if more than one’), there is no lapse unless all the members of the class predecease the testator.

EXCEPTION !!
Section 33 Wills Act 1837
* An exception the doctrine of lapse applies to all gifts by will to the testator’s children or remoter issue (ie direct descendants) unless a contrary intention is shown in the will  implied substitution provision into such gifts.
* Where a will contains a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator, leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue.
* The issue of a deceased beneficiary take the gift their parent would have taken in equal shares. This is particularly important when establishing entitlement under the will because the substitutional gift does not appear on the face of the will.

Section 33 does not apply if the will shows a contrary intention IE express substitution clause.

Question 21

Can a beneficiary disclaim a gift?

Answer 21

• A beneficiary cannot be forced to accept a gift. A beneficiary can disclaim the gift, which will then fall into residue or, in the case of disclaimer of a gift of residue, pass on intestacy.
• A beneficiary who disclaims a gift is treated as having predeceased the testator, which will allow the beneficiary’s issue to replace them under s 33 Wills Act 1837.
• However, a beneficiary who has received a benefit from a gift (eg a payment of income) is taken to have accepted the gift and may no longer disclaim.

Question 22

Forfeiture?

Answer 22

• Forfeiture rule: person should not benefit from the estate of a person they have unlawfully killed, applies to any entitlement whether it arises by survivorship, under the intestacy rules or under the terms of a will.
• Unlawful killing includes murder, manslaughter, aiding and abetting suicide and causing death by careless driving but does not apply where killer was insane.
• Subject to a contrary intention in the will, a person who forfeits an entitlement under a will is to be treated as having predeceased the testator  if child of the testator forfeits or disclaims, their issue can be substituted under the s 33 Wills Act 1837.
• In cases of unlawful killing other than murder the Forfeiture Act 1982 allows the court to modify the effect of the forfeiture rule  court can modify the effect of the rule in any way including granting complete relief. The court must not make an order unless satisfied that the justice of the case demands it having regard to the conduct of the deceased and the offender and all the surrounding circumstances. The killer must apply for the relief within three months of conviction. The time limit is strict, and the court has no discretion to extend the period.
• Ninian v Findlay -assisted husband, tried to change mind but intolerable, relief granted.c

Question 23

What are the 3 ways to revoke a will?

Answer 23

o By a later will or codicil
o By destruction
o By marriage/civil partnership

Question 24

How does later will/codicil revocation work?

Answer 24

S20 Wills Act 1837: a will may be revoked whole or in part by a declaration in a later will or codicil or written declaration executed in same manner as a will, no particular wording requirement but ‘I hereby revoke all former wills previously made by me’ works.

If a will does not contain an express revocation clause, operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent ; could result in complete revocation of the earlier will if the two are totally inconsistent or there could be just a partial revocation in which case the two wills will need to be read together in order to piece together testator’s intentions.

Dating a will not one of the formal requirements in s 9 Wills Act 1837; advisable so that the chronology can be established.

Exceptionally, court may construe testator’s intention to revoke an earlier will by an express revocation clause as being conditional upon a particular event (eg the effectiveness of the new will). If that condition is not satisfied, the revocation may be held to be invalid
so that the earlier will remains effective. (Doctrine of ‘conditional revocation’ or the doctrine of ‘dependent relative revocation’.)

Question 25

How is a will destroyed?

Answer 25

(s 20 Wills Act 1837).

Physical destruction is required: symbolic destruction (eg crossing out wording or writing ‘revoked’ across) not sufficient, although if vital part (eg the signature) is destroyed, partial destruction may be held to revoke the entire will.

If part destroyed is less substantial or important  partial destruction may revoke only that part which was actually destroyed. The test is whether the remainder of the will is intelligible and can still operate in the absence of the destroyed part.

The act of destruction must be carried out with the intention to revoke; will destroyed by accident not revoked.

Where a will has been destroyed, but not successfully revoked, the
court will look at evidence to establish the contents of the will; best evidence is copy of the original will, perhaps oral evidence from those drawing up the will. If contents can be reconstructed, order may be obtained allowing its admission to probate as valid will.

Cheese v Lovejoy: destruction must be coupled with intention to revoke, testator had only put ‘revoked’ with a line on various parts

Destruction must be carried out by testator themselves or by someone else in t’s presence + direction.

Court may apply the doctrine of dependent relative revocation to save a will, on the basis that the testator’s intention to revoke their will by destruction was conditional upon some future event (eg upon the later execution of a new will). If that event did not in fact
take place, the original will may be valid even though it was destroyed. The contents of theoriginal will may be reconstructed from a copy or draft.

Question 26

How does marriage / civil partnership revoke a will?

Answer 26

If the testator marries or forms a civil partnership after executing a will, the will is revoked (ss 18A– 18C Wills Act 1837). Revocation is automatic.

Rule does NOT apply where it appears the testator makes the will prior to and in expectation of a forthcoming marriage or civil partnership with a particular person and that the testator did not intend the will to be revoked (ss 18(3) and 18B(3) Wills Act 1837), 3 elements must therefore be satisfied:

• The expectation must be of a forthcoming marriage to a particular person; will made in general expectation of marriage not sufficient.
• The testator must intend that the will is not to be revoked by the marriage.

Both elements must be evident from the will  will must recite
fact of the expected marriage with the particular person and a wish that the will is not to be revoked.

A will made in contemplation of marriage which complies with these requirements is effective even if the intended marriage never takes place, unless the will is expressed as being conditional on the marriage taking place. Although a marriage with anyone other than the particular person anticipated revokes the will

Question 27

What is the doctrine of mutual wills?

Answer 27

Mutual wills arise where two people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.

They impose a constructive trust over the estate of the person who attempts to revoke in favour of beneficiary in deceased’s original will.

The constructive trust arises when the first testator dies without having revoked their will. At that point the first testator has carried out their side of the bargain, so it would be wrong to allow the survivor to renege on their side.

• Survivor will not revoke their will. But this does not guarantee that the ultimate beneficiary will actually receive their intended benefit. This is because during their lifetime the survivor, as an absolute owner, is free to use their money and property in whatever way they choose.
• Given that a will is always revocable, during their joint lives it is possible for both testators to revoke their mutual wills as a joint decision. However, it may be that during their joint lives one testator unilaterally revokes their will. This is a breach of the agreement and so the other testator’s remedy is the contractual one of seeking damages for the loss suffered as a result of the breach. The effect is also to release the other testator from the agreement not to revoke.

Question 28

How do codicils work?

Answer 28

• Can be used to amend, add to or revoke in part, an existing will. The will and the codicil must therefore be read together in order to ascertain the testator’s wishes.
• A properly executed codicil has the effect of republishing the existing will: confirms the will and causes the will to take effect as if made at the same time as the codicil, but incorporating any changes made by the codicil. The testator must have intended to republish the will, ie evident on the face of the codicil (eg by an express statement).
  o (Courts are generally willing to infer the required intention from reference to existing will.)
• s 34 Wills Act 1837: a republished will is deemed to have been made at the time of republication; rule that a will speaks from the date of execution means that a description of people in a will is taken to refer to those who satisfy the description at the time of republication.
  o If the gift is to Bob’s eldest son and the eldest son dies between the date of the will and date of the codicil, the will is construed as referring to the person who is Bob’s eldest son at the date of the codicil.
• Gift which is invalid because the beneficiary has acted as a witness (see 2.7.2) will be saved if the will is republished by a codicil which is not witnessed by the beneficiary.
• A codicil can be used to revive a will which has previously been revoked. Section 22 Wills Act 1837 provides that a revoked will can be revived by ‘the re- execution thereof, or by a codicil executed in a manner hereinbefore required and showing an intention to revive the same’  resurrects revoked will which then takes effect as if made at the time
• that it was revived.
  o Codicil MUST evidence testator’s intention to revive the will, ie express statement or the inclusion of a disposition which means that the testator could have had no other intention but to revive the will.
• Mere reference to the will does not suffice. Whether the codicil shows the requisite intention is a matter of construction.
• If changes are substantial it is usually advisable to make a new will rather than rely on a codicil.

Question 29

Rules for alteration?

Answer 29

• If alterations made before will was executed, they are valid provided that the testator intended alterations to form part of will.
• Presumed to have been made AFTER will was executed unless contrary proved – extrinsic evidence may be needed ie witnesses to evidence that alterations were already there when will was executed.
• Alterations made after the will VALID if themselves executed like a will s21 WA 1837, initials of testator + witnesses in margin next to amendment suffices, taken account.
• Where invalid alteration made, original wording of will stands provided decipherable  must be ‘apparent’ optically, capable of being read on the fact by ordinary means ie magnifying glass.
• Not possible to ascertain wording by extrinsic evidence (ie solicitor) or interference with will (chemicals) or another doc (x-ray).
• Exception = testator makes amendment which obliterates original wording – intention to revoke AND act of destruction; obliteration of figure in pecuniary legacy revokes original working even though alteration unexecuted and beneficiary receives nothing, will still remains valid.
• Conditional revocation rule = testator obliterates original wording and adds substitute wording – only intended to revoke original words on condition that substitute words effective, invalid + unexecuted .
  o Original words not revoked + court look to evidence to see if the original words can be reconstructed, including any method which CANNOT be used when considering whether wording is apparent (ie copy of will) issue is whether it can be ascertained.