Wills 2 - Gifts Flashcards
Presumptions
Non-technical words bear ordinary meaning.
Technical - ‘personal estate’ personalty rather than whole estate.
May be rebutted by extrinsic evidence.
If;
-meaningless
-ambiguous on face
-ambiguous in light of surrounding circumstances
S21 allows extrinsic evidence in circumstances above.
Rectify
Limited power to correct (where testators intention clear).
S20 -
will fails to carry out intention as a result of;
clerical error
failure to understand instructions
Narrow - not misundertstanding of law.
Property passing under will
Assets determined according to those in existence of death.
Unless contrary intention shown.
Beneficiaries - people alive at time of wills execution.
Blood (my children)
Change in gender does not affect disposal.
Application to High Court.
Trustees protected from-
being under duty to enquire full gender recognition certificate
-being liable without regard to certificate.
Failure of gifts
Uncertainty - subject matter or recipient.
But if charity not certain court can direct which charity.
Beneficiary witness will-
By beneficiary or spouse.
(Only those that signed).
Divorce - treated as pre-deceased.
Ademption - no longer owns gift. Specific legacy.
If nature changed only when change in substance.
‘My car’ refers to specific car. Contrary intention can be shown..
Codicil - executed in same way as will.
Lapse
Beneficiary dies before testator.
Falls into residue.
If die close together.
Elder of two deemed to die first.
Survivorship clauses
28 day contingency period.
Gift to two not lapse unless both die.
A and B jointly - whole gift passes to B.
If words of severance e.g.-
A and B in equal shares - A’s share will lapse.
Will pass under intestacy unless substitutional gift.
Class gift not until all members of class predecease.
S33 Wills Act 1837 -
testators children or remoter issue (direct descendants)
unless contrary intention implied substitution to beneficiary issue if leaving issue. Goes in equal shares.
Disclaim
Falls into residue.
Treated as having predeceased.
If received benefit cannot.
Forfeiture
Unlawfully killed -
Unless insane.
Treated as having predeceased.
Issue can be substituted under s33 Wills Act 1837.
Court can issue different order if justice of case calls for it.
Killer apply for relief within three months after conviction.
Revocation
Free to do so at any time provided capacity.
By later will or codicil;
declaration.
Even if no declaration operates by implication.
If conditional on particular event may hold earlier will to be valid.
By destruction -
burning, tearing or otherwise destroying.
With intention.
Has to. be whole (although may be held if signature destroyed).
If no intent court will look for extrinsic evidence of will.
Must be by tester or someone else in there presence and by their direction.
If destruction conditional on future event may still be valid (old will).
Marriage or civil partnership-
Will revoked.
If made will prior and in expectation to marriage and did not intend to revoke;
-expectation must be of forthcoming marriage
-testator must intend will not to be revoked.
Both must be evident from will.
Will be valid unless will is conditional on marriage occurring.
Conversion from civil partnership to marriage will not revoke..
Mutual wills
Republication speaks from date of republication
Codicil can revive revoked will.
Alterations
Presumed to be made after unless contrary proven.
Initials of testator and witnesses. Must be done in the same form as will.
If invalid and decipherable still stands. Only by means such as magnifying glass. Not extrinsic evidence (e.g. solicitor who drew up will).
If destruction with intention. Beneficiary receives nothing.
Structure of will
Max 4 executors who can apply for grant.
Charging provisions -
can recover out-of pocket expenses.
Profession can - reasonable renumeration.
Burden of IHT
IHT on legacies paid out of residuary estate.
Will can express contrary intention.
Costs of gift - borne by beneficiary.
Charged property - borne by beneficiary.
Survivorship clauses
Beneficiary only has to be alive at death of testator (unlike spouse).
Will pass under deceaseds will or intestacy.
