🖋️Wills 2: interpretation, alteration, revocation

Question 1

Courts 2 basic presumptions to est testators intentions

Answer 1

1. Non-technical words bear their ordinary Meaning
2. Technical words given their technical meaning (eg. ‘all my personal estate’ – ‘personal’ given technical meaning of personalty as opposed to realty.)
3. presumptions may be rebutted if from the will it is clear that the Testator was using the word in a different sense. The court cannot invent different meanings.

Question 2

Can a court rectify a will?

Answer 2

Can rectify NOT rewrite if will fails to carry out intention because of:
1. clerical error ie. include writing or omitting something by mistake
2. failure to understand instructions (NARROW – can’t just bc sol misunderstood law or thought the words chosen achieved the desired outcome, but didn’t)

Question 3

For property, when does the will ‘speak from’ and what does this mean?

Answer 3

• Generally Date of death =will interpreted as if it had been executed immediately before death
• BUT ‘MY’ + specific asset (eg ‘My’ car)=asset T owned at the date of execution
• ‘MY’ + generic asset capable of increase or decrease (my collection of cars) =date of death.

Question 4

For people, when does the will speak from?

Answer 4

Date of execution (=Bs interpreted as referring to people alive at the time of the will’s execution)
UNLESS contrary intention in will

Question 5

What is presumed for gifts left to classes of family relationship eg. ‘my children’ or ‘my nephews’

Answer 5

Taken to refer to blood relationships
UNLESS: contrary intention in will

Question 6

What is presumed for a gift to ‘my children’?

Answer 6

T’s own LEGAL children
NOT spouse’s/CP’s children/cohabitant’s (eg ‘step-children’)
UNLESS: contrary intention in will

Question 7

Rules re gifts to wives and civil partners eg. ‘johns wife’ or ‘johns civP’?

Answer 7

Terms ‘husband/wife’ and ‘civil partner’ NOT synonymous
Eg. Gift to ‘John’s wife’ will fail if J entered a civil partnership instead.

Question 8

Rules around gender recognition

Answer 8

• Full gender certificate= is legally recognised in acquired gender
• Pre 4 April 2005 wills=gender change NOT recognised (law uses gender at birth)
• Post=gender is recognised (identified in acquired gender)

Question 9

What can be done if inheritance is effected because of a gender recognition certificate?

Answer 9

Can apply to the HC if the disposition or passing of property under a will is affected by a person’s acquired gender t, and someone’s expectations of inheritance are defeated. Court has wide discretion to make an order, which could incl. a lump sum payment, transfer, or settlement of property, if it deems it just

Question 10

How are PRs/trustees protected re gender recognition?

Answer 10

DON’T have to enquire whether a full gender recognition certificate has been issued or revoked before distributing property.
Protected if they distribute property without knowing whether a GR certificate has been issued or revoked, as long as they weren’t given prior notice

Question 11

6

How can gifts fail

Answer 11

1. Uncertainty (as to subject matter or recipient)
2. Beneficiary/their spouse witnesses will
3. Divorce or Dissolution
4. Ademption (T not longer owns prop)
5. Lapse (B dies before T)
6. Forfeiture

Question 12

Exception to gift failing for uncertainty

Answer 12

Gift to charity which does not identify the charity – court can direct which charity is to benefit.

Question 13

When will a gift to a beneficiary NOT fail if they/their spouse witnesses the will?

Answer 13

1. If will is validly executed without B’s signature – 3 witnesses & B’s signature is ignored.
2. If its a spouse they marry AFTER witnessing the will

Question 14

Exception to ademption?

Answer 14

BUT valid if asset is substantially the same and only changed in name or form not substance
◊ Eg. Sold shares for money=ademption

Question 15

What happens if a testator gets rid of a specific item but buys a different item that fits the same description

Answer 15

Gift adeems

Question 16

Lapse: what happens if T & B died close to each other

Answer 16

Est who died 1st
If cant prove, presumption = Oldest died first – if T was older the property passes to the B’s estate

Question 17

Lapse: What is a survivorship clause

Answer 17

Prevent a will gift taking effect where B survives T by short time and may provide alternative B

Question 18

Lapse: what happens if the gift is to more than one person?

Answer 18

As joint tenants: Only lapse if all die before T.
UNLESS gift inc words of severance – all to A & B in ‘equal shares’ , living takes one share only and lapsed share will return to the estate under intestacy rules.
If the gift is a class gift – ie. ‘to my nieces and nephews’ there is no lapse unless all the members of the class die before T.

Question 19

Exception to the rules of gifts lapsing if a beneficiary dies first

Answer 19

33 WA 1837
Where theres a gift to child who dies but the child has an issue, NO LAPSE and gift passes to childs issue

Question 20

How can a gift fail via forfeiture

Answer 20

• If beneficiary unlawfully kills testator, gift passes as though B predeceased
• EXCEPT where killer insane
• In cases other than murder (eg assisted suicide) – courts can grant complete relief, Killer must apply for relief within 3 months of conviction.

Question 21

Forfeiture: ways you can ‘unlawfully kill’ someone

Answer 21

Murder
Manslaughter
Aiding/abetting suicide
Death by careless driving

Question 22

What is revocation

Answer 22

The formal act of cancelling or withdrawing a will.

Question 23

What is the effect of revocation

Answer 23

Will nullify the will, either as a whole or in part.

Question 24

When can a will be revoked?

Answer 24

T can revoke will at any time if they have capacity (Capacity is same as required to make a will).

Question 25

3 ways a will can be revoked

Answer 25

1. By a later will or codicil 2. By destruction 3. By marriage/forming a civil partnership.

Question 26

How can a will be revoked by a later will or codicil

Answer 26

□ Express revocation clause in will: revokes prev. wills. □ No express clause: new will/codicil revokes earlier once by implication to the extent that the two are inconsistent

Question 27

Is dating a will a formal requirement?

Answer 27

No but advisable to date for purposes or revocation.

Question 28

What is conditional revocation/the doctrine of dependent relative revocation?

Answer 28

Court may construe a T’s intention to revoke an earlier will by an express revocation clause as being conditional upon a particular event. If that condition is not satisfied the revocation may be held to be invalid.

Question 29

How to revoke a will by destruction

Answer 29

* Physical destruction by ‘burning, tearing or destroying * By T or some person in his presence and by his direction * With the intention to revoke

Question 30

Revocation by destruction: is symbolic destruction enough? ( ie. crossing words/writing ‘revoked’ across)

Answer 30

* NO, Physical destruction required * But if signature crossed out (vital part) this might sufficiently revoke whole will. * **Test**: whether remainder of will is intelligible and can still operate in the absence of the destroyed part.

Question 31

Revocation by destruction: effect of only destroying part of will

Answer 31

May only revoke part destroyed.

Question 32

When/how is a will revoked by marriage?

Answer 32

□ If T marries/ forms CP after executing a will, its automatically revoked □ UNLESS: Clear from will it was made in expectation of marriage/CP to a particular named person, not a general expectation/hope of marriage (even if marriage never happens)

Question 33

Is a will revoked where a civil partnership is converted into a marriage?

Answer 33

No

Question 34

What is the doctrine of mutual wills

Answer 34

* Where two people make wills in similar terms and MAKE A CLEAR AGREEMENT that whichever of them survives will irrevocably leave their estate in a particular way. * Equity stops will being revoked after death of 1st person * Constructive trust imposed over 1st estate in favour of the beneficiary as per the original will.

Question 35

How are mutual wills revoked

Answer 35

Via a joint decision If one decides to revoke this is a breach and the party can seek contractual remedy of damages.

Question 36

What is a codicil and what is it used to do?

Answer 36

A doc that supplements an existing will Used to: 1. Amend part of existing will 2. Add to part of existing will 3. Revoke part of existing will 4. Revive revoked will Operates to republish will a will at the date of the codicil

Question 37

How is a codicil executed

Answer 37

Same as a will and T must have intended to republish the will.

Question 38

How can a codicil revive gifts that have failed?

Answer 38

1. Bc will witnessed by B: saved if republished by a codicil that’s not witnessed by B or a description of people in a will is taken to refer to those who satisfy the description at the date of the codicil 2. Ademption: If loose/sell but replace before make codicil, gift will be one at date of the codicil

Question 39

How can a will be altered

Answer 39

* Before execution: valid provided T intended the alterations to form part of the will. * After execution: valid if alterations executed like a will – (enough for the testator and witnesses to initial in the margin)

Question 40

What is the presumption of execution?

Answer 40

Alterations are presumed to have been made after the will was executed unless the contrary can be proved

Question 41

Exception to alterations needing to be executed

Answer 41

Obliterations (destroying original wording) Don’t need to be executed, just need intention to revoke

Question 42

When may the court apply the conditional revocation rule for obliterations?

Answer 42

□ May be applied where T obliterates the original wording, and at the same time, adds some substitute wording - ie. court finds that the testator only intended to revoke original words on condition that the substitute words were effective. □ May try to reconstruct original wording via evidence (such as earlier drafts or other documents)

Question 43

What happens if alterations are invalid?

Answer 43

Original wording stands, as long as its legible to an ordinary person without needing special means

Question 44

Overall structure of will

Answer 44

1. Opening 2. Revocation clause 3. Appointments 4. Non residuary gifts 5.Gifts of residue

Question 45

Structure: what is in the opening and example wording

Answer 45

Full name and address of T Identify nature of doc (a will) Date will (either at opening or end of the will) at time it is executed. "This is the last will and testement of me, [Firstname Surname], retired [Career], of [Address], which I make this [date]"

Question 46

Structure: What is a revocation clause and is it mandatory and wording

Answer 46

Indicates all earlier wills/codicils are expressly revoked. Not mandatory but sols will use it or they’ll probs be negligent "1. I revoke all former wills, codicils and testamentary dispositions."

Question 47

Structure: who may need to be appointed and example wording

Answer 47

Executors Trustees (f a trust created over estate) Guardians (if have infant children incase death of both parents) "2. I appoint [name] of [address] to be my executor ("my Executor")

Question 48

Min and max number of trustees

Answer 48

□ Min: 1 □ Max: none (but only 4 can apply for grant of probate)

Question 49

What should be done in the will if a solicitor is being appointed trustee/executor and example wording

Answer 49

Firm should be listed in case sol dies. "I appoint the partners at my death in the firm of ULaw LLP of 13A The Business Hive, High Street, Weyford, Surrey GU54 7TT as the executors and trustees of this will. However, I want no more than two of the partners to apply for a grant of probate of this will. The reference to ULaw LLP includes any firm that has succeeded to, or is carrying on the practice of, ULaw LLP at my death (including a firm that has been incorporated or formed a limited liability partnership). "

Question 50

Can you have the same person as an executor and a trustee

Answer 50

Yes can but not essential

Question 51

When can executors/trustees charge for their time

Answer 51

□ Fiduciary =unable to profit from position, unless authorised. □ But can recover ‘out of pocket expenses’ from estate/trust ie. travel expenses □ CAN charge reasonable remuneration for time spent and work done if: 1. A trust corporation OR acting in a professional capacity 2. Have consent of co-executors/co-trustees OR Will contains express charging express clause

Question 52

Can a sole executor/trustee charge under the statutory provisions and why?

Answer 52

NO-cant get consent of other trustees

Question 53

Types of non residuary gift

Answer 53

□ Pecuniary legacies (money) □ Specific Legacies (specific assets)

Question 54

What should gifts to charities include?

Answer 54

Name, address and registered charity number

Question 55

Where does the burden of Inheritance Tax, Costs and Charges fall?

Answer 55

IHT: residue Costs of packing or transportation of specific gifts: beneficiary Charges: beneficiary UNLESS otherwise specified in will

Question 56

Structure: What should the gift of residue section include? And example wording

Answer 56

Express direction for the payment of all debts, expenses and legacies to be made from the residue before distributed to B. In absence of such a direction, the statutory order set out in the AEA 1925 will apply. Possibly set up a trust? "After the payment of debts, funeral expenses and testamentary expenses, I give the residue of my estate (‘my Residuary Estate’) to..."

Question 57

How to avoid partial intestacy?

Answer 57

Provide substitutional gift of residue Eg. ‘for such of my children as survive me and if more than one in equal shares’ ensures there will be partial intestacy only if all children predecease T.

Question 58

Example wording for residuary estate clause?

Answer 58

"I give the rest of my property, after deducting debts, testamentary expenses and legacies to my [daughter\fam member] if he/she survives me 28 days but it she does not survive me then to [name]

Question 59

Example attestation clause wording

Answer 59

"Signed by [testators name] in our joint presence and buy us in hers/his"

Question 60

Example wording of charitable gift

Answer 60

4. (a) I give [amount] to [Charity name] (Charity Registration number [number]) ('the Charity') for its general charitable purposes. (b) If at my death the charity has ceased to exist or has amalgamated with another charity or has changed its name, my Executor shall pay it to the charitable organisation which they consider most nearly fulfils the objects of the Charity. (c) The receipt of a person who appears to be a proper officer tot he Charity or any substituted charity shall be a sufficient discharge to my Executor."

Question 61

When can reconstruction of a destroyed will be effective?

Answer 61

if it was destroyed by mistake/accident