UNIT 2 - Interpretation, Alteration and Revocation Flashcards
A woman makes a will in which she appoints her only brother and his son (her nephew) as her executors. She makes gifts of £5,000 to charity, £10,000 to her best friend, and gives the rest of her estate to her brother.
The two persons who witnessed the will are the husband of the best friend and the nephew.
Which of the following best describes the position in relation to the woman’s will?
A) The will is invalid because the best friend’s husband witnessed the will.
B) The will is invalid because the nephew witnessed the will.
C) The will is valid but the best friend’s gift will not take effect because her husband witnessed the will.
D) The will is valid but the brother’s appointment as executor fails because he is a beneficiary.
E) The will is valid but the nephew’s appointment as executor fails because he witnessed the will.
CORRECT ANSWER C - A gift in a will fails if a beneficiary or their spouse acts as witness (s 15 Wills Act 1837). The best friend is a beneficiary and her husband acted as a witness.
Option A is wrong as a will is not invalidated if a beneficiary or their spouse acts as witness. Option B is wrong as a will is not invalidated if an executor is a witness.
Option D is wrong as a gift in a will does not fail by virtue of the fact that the beneficiary is also the executor.
Option E is wrong as a witness can be an executor.
A woman died recently. Her valid will gave her entire estate (all assets in her sole name) to ‘such of my daughters who are living at my death and if more than one in equal shares’.
The woman was a widow, and had one daughter as a result of her marriage. This daughter died six months before the woman, leaving a daughter (the granddaughter), now aged 12 years. For the last four years the woman has been living with her boyfriend and his daughter (now aged 16 years). The woman and her boyfriend also have a daughter together, who is now aged two years.
Which of the following best describes entitlement to the woman’s estate?
A) The boyfriend’s daughter and the two-year-old daughter will share the estate.
B) The granddaughter will take the whole estate.
C) The granddaughter and two-year-old daughter will share the estate, provided that they each attain the age of 18.
D) The two-year-old daughter will take the whole estate.
E) The granddaughter and two-year-old daughter will share the estate.
CORRECT ANSWER E - The gift to ‘my daughters’ will be interpreted as meaning a gift to only her own daughters (whether legitimate or not), and not that of her boyfriend (option A therefore is wrong). Although the first daughter had predeceased, she had left a child who takes in substitution for her mother (s 33 Wills Act 1837).
Options B and D are wrong in that they wrongly exclude the two-year-old daughter and granddaughter respectively.
Option C is wrong as although the granddaughter and the two-year-old daughter are entitled they do not have to satisfy a condition of reaching the age of 18 years because this was not a stipulation in the will.
A husband and wife own their house as beneficial joint tenants. They both make a will in which each left their entire estate to the other. Sometime later, the husband is convicted of the wife’s murder.
Which of the following best describes the husband’s entitlement to the wife’s estate?
A) The house passes to the husband by survivorship; the gift in the will is forfeit.
B) The husband will receive the whole estate if the court decides to modify the effect of the forfeiture rule in that way.
C) The house passes to the husband by survivorship; the gift in the will lapses.
D) The husband is not entitled to anything from the estate.
E) The house passes to the husband by survivorship; the rest of the estate passes under the intestacy rules.
CORRECT ANSWER D - The husband is responsible for the wife’s unlawful killing and therefore
he cannot benefit from the wife’s estate under the forfeiture rule. The forfeiture rule applies to both the wife’s interest in the house (the effect is that the joint tenancy is severed so the wife’s interest cannot now pass by survivorship) and to the gift in a will. As a result, options A, C and E are wrong.
Option B is wrong because the court is not able to modify the effect of the forfeiture rule as the conviction is for murder.
Wills: Establishing Entitlement
A man wrote out a will as follows:
‘I make this will in the hope that I will soon be married, so I leave everything to my wife and declare this will to be irrevocable whatever may happen in the future.’
The will is validly executed.
A year later the man met a woman and, after a whirlwind romance, they were married. However, the marriage did not last and the couple are now divorced.
Is the will valid?
A) Yes, because it was made in contemplation of marriage.
B) Yes, but the gift to the wife fails as a result of the divorce.
C) Yes, because the testator declared the will to be irrevocable.
D) No, because the will was revoked by the subsequent divorce.
E) No, because the will was revoked by marriage.
CORRECT ANSWER E - A will is revoked by marriage.
Option A is wrong because in order to be saved from revocation the will must be made in contemplation of marriage to a particular person. A general expectation or hope of marriage is not sufficient.
Option B is wrong because, although the option sets out the usual effect of divorce on a gift in a will, on the facts this will had already been revoked.
Option C is wrong because a general declaration that a will is irrevocable is of no effect. Option D is wrong because divorce does not revoke a will.
A testator made a valid will two years ago leaving everything to his son and appointing him as his executor. Last month the testator had an argument with his son and decided that he would disinherit him. Following the argument, the testator asked his neighbour to come to his house. The testator tore up the original will into tiny pieces in front of his neighbour and said: ‘That good for nothing son of mine will not get a penny of my money. You are my witness.’
The testator died suddenly last week, before he had a chance to make another will, and was survived by his son and three daughters.
The testator’s son has found a copy of the will in the testator’s personal files and wants to know whether he will inherit his father’s assets under the will.
Which of the following best describes the position in relation to the will?
A) The will was not revoked when it was torn up in front of the neighbour as two witnesses would be needed for an effective revocation.
B) The will was revoked when it was torn up in front of the neighbour as physical destruction of a will in front of one witness is sufficient to revoke a will.
C) The will was revoked when it was torn up in front of the neighbour as physical destruction of a will with the intention to revoke is sufficient to revoke a will.
D) Notwithstanding the fact that the will was torn up into tiny pieces, if its contents can be reconstructed from a copy then an order may be obtained allowing its admission to probate as a valid will.
E) The will was not revoked as the testator did not make another valid will before he died.
CORRECT ANSWER C - as revocation of a will can be done by ‘burning, tearing or otherwise destroying the same by the testator … with the intention of revoking the same’. The will was deliberately destroyed and there was an intention to revoke on the facts.
Option A is wrong as there is no need for witnesses for the physical destruction of a will.
Option B is wrong as there is no formal requirement for witnesses although the neighbour will be able to provide evidence in relation to the testator’s intention to revoke.
Option D is wrong as the reconstruction of a destroyed will is possible if it had been done by mistake or by accident but this is not the case here.
Option E is wrong as the doctrine of dependent relative revocation does not appear to apply on the facts.
A testator died last month. His validly executed will contained the following legacy: £40,000
‘I give £20,000 to my grandson.’
No one can remember when the legacy was altered, but the testator’s initials appear in the margin adjacent to it. The testator had only one grandson and he survived the testator. The will left the rest of the estate to charity.
Which of the following statements best explains the grandson’s entitlement under the legacy?
A He is entitled to nothing because the alteration is presumed to have been made after execution.
B He is entitled to £20,000 because the original wording is apparent.
C He is entitled to nothing because the legacy has been revoked.
D He is entitled to £40,000 because the alteration has been validly attested.
E He is entitled to nothing because the testator did not write his full signature.
CORRECT ANSWER B - The alteration is presumed to have been made after execution. The alteration is invalid as it has not been properly attested, but as the original wording is apparent it will stand.
Option A is wrong. Although there is a presumption that an alteration was made after execution, this does not result in the beneficiary receiving nothing where, as here, the original wording is apparent.
Option C is wrong because revocation of the legacy would require obliteration of the original wording.
Option D is wrong because valid attestation requires the signatures (or initials) of the testator and two witnesses.
Option E is wrong. The use of a full signature would make no difference (initials are sufficient). The alteration has not been validly attested because of the absence of witnesses, but this does not result in the beneficiary receiving nothing – see comment on Option B above.
A woman died last week. In her valid will, she gave her daughter ‘the property which at my death constitutes my main residence’ and she gave the residue of her estate to her son. At the date of the will, the woman owned 4 Church Mews. Before she died, she sold 4 Church Mews and bought Oak Cottage. Oak Cottage was the woman’s main residence at the time of her death. The will was silent on the burden of inheritance tax (‘IHT’) and any mortgage on the residence.
Which of the following best describes the daughter’s entitlement under the will?
A) The daughter is not entitled to anything under the will because the gift of 4 Church Mews has lapsed.
B) The daughter is not entitled to anything under the will because the gift of 4 Church Mews has adeemed.
C) The daughter is entitled to Oak Cottage but will take it subject to IHT and any mortgage.
D) The daughter is entitled to Oak Cottage and will take it free from IHT and any mortgage.
E) The daughter is entitled to Oak Cottage and will take it free from IHT but subject to any mortgage.
CORRECT ANSWER E - The legacy of the house does not fail by ademption because Oak Cottage fulfils the description of ‘the property which at my death constitutes my main residence’. Where the will is silent, the legatee takes the property free of IHT (which is borne by the residuary beneficiary) but subject to any charge (s 35 AEA 1925).
Option A is wrong. Lapse refers to the situation where a beneficiary predeceases the testator, which did not happen here.
Option B is wrong because the legacy was not of the residence owned at the date of the will. The wording of the gift prevents ademption unless the testatrix owned no residence at all when she died.
Option C is wrong because where the will is silent, legatees take their legacies free of IHT (it is borne by residue).
Option D is wrong because, where the will is silent, the legatee takes the property subject to any charge (s 35 AEA 1925).
A man died last week. In his valid will, he left the residue of his estate to
‘such of my children who are living at my death, and if more than one equally, PROVIDED that if any child of mine shall die before me leaving a child or children living at their death such child or children shall provided they attain the age of 18 take by substitution and if more than one in equal shares the share of my Residuary Estate which their parent would have taken had they survived me’.
The man was survived by a son, aged 30, who has no children. The man’s daughter predeceased him, leaving two infant children.
Who is entitled to the residue of the man’s estate?
A) The son and the daughter’s estate are each entitled to half of the residue.
B) The son is entitled to the whole of the residue.
C) The son is entitled to half of the residue. The daughter’s children have vested interests in the other half of the residue.
D) The son is entitled to half of the residue. The daughter’s children have contingent interests in the other half of the residue.
E) The son is entitled to half of the residue. The other half of the residue will pass on the man’s intestacy.
CORRECT ANSWER D - There is a substitutional gift for a predeceased beneficiary’s share
of residue. It will pass to the predeceased beneficiary’s children. The interests of the daughter’s children are contingent on their attaining the age of 18, and they have not done so yet because the facts say that they are infants.
Option A is wrong. The substitutional gift does not provide for the daughter’s estate to take her share of the residue. This would mean that her share would pass under her will or intestacy.
Option B is wrong. The wording of the substitutional gift would only allow the son to take the daughter’s share if she had no children.
Option C is wrong because, as explained above, the interests of the daughter’s children are contingent.
Option E is wrong. The substitutional gift has prevented a partial intestacy.
A woman died six months ago. She appointed her brother and sister to be her executors, left each of them £10,000 in her will and gave the residue of her estate to her partner. The will did not vary the executors’ powers.
In place of the cash legacy, the brother would prefer to take one of the woman’s public company shareholdings (now worth £10,000 but likely to increase in value in the near future).
Which of the following best describes the advice that should be given to the brother?
A) The statutory power for executors to appropriate assets instead of a cash legacy would apply provided the woman’s partner consents.
B) There is no power for executors to appropriate assets to pecuniary legatees.
C) The statutory power for executors to appropriate assets instead of a cash legacy would apply but, in this case, it would be a breach of the brother’s fiduciary duty.
D) The statutory power for executors to make advancements of capital would apply to allow the brother to give himself the shares instead of the cash legacy.
E) The legacy to the brother is void because executors cannot be beneficiaries.
CORRECT ANSWER C - Section 41 AEA 1925 gives PRs the power to appropriate any assets in the estate in or towards satisfaction of any legacy. However, as an executor, the appropriation would give rise to a conflict of interest, which would be a breach of the brother’s fiduciary duties.
Option A is wrong. Section 41 AEA 1925 requires only the consent of the beneficiary to whom the PR is appropriating.
Option B is wrong. Section 41 has not been excluded by the will.
Option D is wrong because this is not an advancement (the payment of trust capital to a beneficiary earlier than they would otherwise be entitled).
Option E is wrong because executors (unlike witnesses) can be beneficiaries.
TRUE OR FALSE:
A solicitor can never act in circumstances where a client instructs the solicitor to draw up a will which includes a gift to the solicitor.
FALSE - It may be possible for a solicitor to act in these circumstances, for example if the gift was small in value and the client of long standing, or where the client had already taken independent legal advice. However, there will also be circumstances when acting would place the solicitor in breach of, for example, SRA Principle 3 (act with independence) and SRA Code of Conduct for Solicitors, RELs and RFLs Paragraph 1.2 (do not abuse your position by taking unfair advantage) or Paragraph 6 (do not act if there is an own interest conflict). It is for the solicitor to exercise judgement in applying the standards to the individual circumstances of the case.
Which of the following has the effect of revoking a will?
A) The testator’s divorce.
B) The testator writes ‘this is revoked across’ the top of the will.
C) The accidental destruction of the will in a fire.
D)The making of a later inconsistent will.
E) The testator’s marriage.
CORRECT ANSWERS D OR E - An earlier will is revoked by the testator’s marriage and by a later inconsistent will.
A is wrong because any appointment of or gift to a spouse is rendered ineffective by divorce, but the will itself is not revoked.
B is wrong because simply writing ‘this is revoked’ across the top of the will does not amount to destruction.
C is wrong because destruction must be accompanied by intent in order to effect revocation and therefore accidental destruction is not sufficient.
TRUE OR FALSE:
Every gift in a will should contain a substitution clause.
FALSE - Whilst it is generally advisable to include a substitution to reduce risk of the gift failing, this is not universally true. Including a substitution in certain circumstances can, for example, have adverse tax effects.
Rakie died last week. Rakie left a valid will which includes the following clause:
‘I give the gold bracelet, which I inherited from my mother, to my niece, Robinah’
The will provides for the remainder of the estate to pass to Rakie’s husband, Toheeb.
Rakie’s only surviving relatives are Toheeb and Robinah’s 18-year-old daughter, Phina. Robinah died last year. The gold bracelet is part of Rakie’s estate.
Which of the following statements is/are correct?
A) The gold bracelet will pass to Phina.
B) The gift of the gold bracelet is adeemed.
C) The bracelet will pass to Toheeb.
D) The gift of the gold bracelet lapses.
E) The gold bracelet passes to Robinah’s estate
CORRECT ANSWERS C OR D - The gift lapses because Robinah predeceased Rakie. The effect of the failure of the gift is that the bracelet falls into the residuary estate and passes to Toheeb under the terms of the will.
A is wrong because the clause does not contain a substitution (s33 Wills Act 1837 does not apply because the gift is to a niece). The gift does not adeem as the necklace is part of the estate, so B is wrong.
E is wrong because Robinah did not survive the testatrix and so the gift cannot pass to her estate.
Mathias makes a valid will which includes the following statement:
‘I am making this will in the expectation that I will soon be married’.
A year later Mathias married Tom.
TRUE OR FALSE:
Mathias’ will was revoked by his marriage to Tom.
TRUE - A will is not revoked by marriage if it appears on the face of the will that it was made in contemplation of marriage to a particular person and the testator intended that the will should not be revoked. A general expectation of marriage is not sufficient to save the will.
Frank (aged 50) made a valid will leaving his entire estate to his wife, Nisha (45), with the proviso that if Nisha predeceases Frank, the entire estate passes to Frank’s sister, May. Frank and Nisha have no children together, but Nisha has a son, Bobby, from a previous relationship. Frank’s only other living relative is his mother, Tanya. Nisha did not make a will. Last week Frank and Nisha were in a car accident. They both died instantaneously at the scene.
Which of the following statements is correct?
A) May will receive Frank’s entire estate.
B) Tanya, May and Bobby will share Frank’s estate
C) Tanya will receive Frank’s entire estate.
D) Bobby will receive Frank’s entire estate.
E) Tanya and May will share Frank’s estate.
CORRECT ANSWER D - As Frank and Nisha died together, the elder, Frank, is deemed to have died first. As Nisha survived Frank, she takes the estate under Frank’s will, which then passes to Bobby under the intestacy rules as Nisha’s only child (see Unit 1).
