Wills and Estate Administration - The Interpretation of Wills

Question 1

When the Will Speaks

Answer 1

• Gifts: date of testator’s death (superseded by words such as “now” or “at present”)
• Beneficiaries: date of will’s execution (subject to class closing rules)

Subject to contrary intentions in the will itself (e.g. “my car” or “my ring” would cause the will to speak from the date of the will’s execution)

Question 2

Types of Gifts

Answer 2

• Legacy: gift of personal property
• Devise: gift of real estate

Question 3

Legacies

Answer 3

• Specific: gift of particular asset identified in will (such a gift will fail if it no longer exists at the date of death)
• General: gift that does not identify a particular item (e.g. a horse, rather than my horse) - if subject of general legacy is not in the estate on the date of death one must be purchased by the executors, funds permitting
• Pecuniary: gift of cash (most pecuniary legacies are general)
• Demonstrative: general legacy which identifies source of gift (e.g. specific bank account). General legacy rules followed if insufficient funds in bank account to satisfy demonstrative legacy
• Residuary: gift of rest of deceased’s estate

Question 4

Ademption

Answer 4

Doctrine of ademption:

Specific gift fails if:

1. It is no longer part of the estate
2. It is subject to a binding contract for sale; or
3. It no longer meets description in will

Specific gift no longer meets description in will: A change in the substance of subject matter of the gift causes it to adeem, a change in name or form does not

Doctrine of ademption does not apply to general legacies

If the gift is “my car”, for example, the courts usually presume a contrary intention, and the will will speak from the date of execution (as opposed to death) - if that car is no longer in estate the gift will adeem

Question 5

Lapse

Answer 5

• If beneficiary dies before testator any gift to them will lapse and gift falls into residuary of estate
• Common practice to include a substitutional gift, if this is effective it will pass to substitute beneficiary and will not lapse
• If a gift lapses it falls into the residue
• If a residual gift lapses it passes under the rules of intestacy
• Attestation clauses used to prevent lapse

Question 6

Simultaenous Death

Answer 6

• Testator and beneficiary dying at the same time or so close together it is impossible to ascertain who died first
• Older person assumed to have died first

Question 7

Exception to Lapse

Answer 7

• Gifts to deceased descendants are saved for their issue
• If a testator’s child has died before them that child’s children (or issue) are entitled to the legacy instead (if more than one then they will take in equal shares, known as per stirpes) - applies to children who are conceived but unborn
• Subject to contrary intention in the will

Question 8

Gift to Witnesses

Answer 8

• Gifts to witness or witness’s spouse fails unless there are at least two other witnesses who are not beneficiaries
• Rest of will remains valid

Question 9

Gifts to Children

Answer 9

• Includes adopted children or children born within and outside marriage but not step-children
• Often expressed as ‘class’ gifts: those who fall into the class are beneficiaries of gift
• Class closing rules: apply unless will provides otherwise. When a class closes it excludes any potential beneficiary not then living
• Class usually closes when at least one beneficiary has vested interest (don’t have to satisfy any condition to receive the interest). Class will be closed around that beneficiary who has a vested interest and others then living who have a contingent interest
• Will may exclude class closing rules

Question 10

Gifts made to people

Answer 10

• E.g. eldest son of Mark
• Construed as a gift to the person fulfilling that description when the will was executed

Question 11

Gifts to joint tenants

Answer 11

• Will not lapse unless all of the recipients die before the testator
• If a gift is made to “A and B jointly” and A dies before the testator the whole gift will pass to B
• If a gift is made to “A and B in equal shares” and A dies before the testator A’s share will lapse

Question 12

Survival of beneficiary

Answer 12

• If a gift is conditional on beneficiary surviving for a specified number of days after the testator
• Will not lapse unless they fail to survive that long