Wills Drafting: Construction Flashcards
When does a will “speak” in relation to the identification of property it disposes of?
A) From the date of execution unless stated otherwise
B) From the date of death unless stated otherwise
C) From the date the executor begins administration
D) From the date probate is granted
B) From the date of death unless stated otherwise
Explanation: Under s.24 Wills Act 1837, a will is interpreted as if executed immediately before death, unless a contrary intention appears in the will.
How does the wording of a will affect whether the general rule in s.24 Wills Act 1837 applies?
A) If the will uses the word “my,” it refers to property owned at execution
B) If the will uses the word “the,” it refers to property owned at execution
C) If the will does not specify ownership timing, it refers to the date of execution
D) If the will states “now,” it refers to property owned at death
A) If the will uses the word “my,” it refers to property owned at execution
Explanation: Words like “my” or “at present” show a contrary intention, meaning the gift is identified at the time of execution, rather than at death.
What is the default tax treatment of specific gifts in a will?
A) The recipient must pay inheritance tax (IHT)
B) The gift is free of IHT, and tax is paid from the residue
C) The recipient pays IHT only if the estate has insufficient funds
D) The executor has discretion over who pays IHT
B) The gift is free of IHT, and tax is paid from the residue
Explanation: Unless the will expressly states otherwise, IHT is treated as a testamentary expense, meaning it is paid from the residuary estate.
What happens if a testator gifts “my Rolex watch” in a will but sells it before death?
A) The gift is converted into a cash legacy of equal value
B) The gift adeems, and the beneficiary receives nothing
C) The executor must purchase a replacement watch
D) The beneficiary receives a different watch from the estate
B) The gift adeems, and the beneficiary receives nothing
Explanation: Ademption occurs when the subject matter of a specific gift is no longer owned by the testator at death. The gift fails unless a substitutional gift is provided.
If a testator gifts “my collection of paintings” in their will, what happens if they acquire new paintings after executing the will?
A) Only paintings owned at execution pass under the gift
B) The beneficiary only receives the new paintings
C) The entire collection, including new paintings, passes to the beneficiary
D) The executor decides whether to include new paintings
C) The entire collection, including new paintings, passes to the beneficiary
Explanation: A gift of a collection is interpreted as including any additions to that collection at death, unless the will states otherwise.
How is a class of beneficiaries identified in a will?
A) Beneficiaries are identified at the date of execution
B) Beneficiaries are identified at the date of probate
C) Beneficiaries are identified at the date of death
D) Beneficiaries are identified based on the executor’s discretion
A) Beneficiaries are identified at the date of execution
Explanation: The general rule is that people are identified at the date of execution, not death, unless stated otherwise.
What does s.35 Administration of Estates Act 1925 state about property subject to a mortgage?
A) The mortgage debt is paid from the residuary estate
B) The beneficiary receives the property free of any charge
C) The property passes subject to the mortgage unless stated otherwise
D) The executor must sell the property to clear the mortgage
C) The property passes subject to the mortgage unless stated otherwise
Explanation: s.35 AEA 1925 states that charged property passes with the mortgage liability, unless the will expressly states it should be paid from the residue.
What is the effect of a survivorship clause in a will?
A) It ensures all beneficiaries must survive the testator by 12 months
B) It prevents gifts from failing due to uncertainty
C) It avoids complications if two people die in close succession
D) It ensures property automatically passes to the residuary estate
C) It avoids complications if two people die in close succession
Explanation: Survivorship clauses (typically 28 or 30 days) prevent issues such as double taxation and loss of control over ultimate estate distribution.
If a testator and beneficiary die together and the order of death is uncertain, which rule applies?
A) The younger person is presumed to have died first
B) The court determines the order of death based on medical evidence
C) The estate is split equally between both deceased persons’ heirs
D) The older person is presumed to have died first
D) The older person is presumed to have died first
Explanation: Under s.184 Law of Property Act 1925, the elder is presumed to have died first in uncertain cases (the commorientes rule).
How does s.21 Administration of Justice Act 1982 assist in interpreting wills?
A) It allows extrinsic evidence to be used when the will is ambiguous
B) It permits the executor to modify unclear clauses
C) It allows a will to be rewritten to reflect the testator’s likely intentions
D) It prevents a will from being challenged due to unclear language
A) It allows extrinsic evidence to be used when the will is ambiguous
Explanation: s.21 AJA 1982 permits extrinsic evidence if a will is ambiguous or meaningless, but does not allow variation or rewriting.
A testator gifts “my flat at 10 High Street” in their will. Before death, they sell it and buy a different property. What happens to the gift?
A) The beneficiary receives the new property
B) The gift adeems, and the beneficiary gets nothing
C) The executor must provide a cash equivalent of the old property
D) The court decides based on the testator’s past statements
B) The gift adeems, and the beneficiary gets nothing
Explanation: Specific gifts fail (adeem) if the asset no longer exists at death unless a substitutional provision exists.
A testator gifts “my business shares in ABC Ltd.” but later sells them and buys shares in XYZ Ltd. What happens?
A) The beneficiary receives XYZ Ltd shares
B) The gift adeems, and the beneficiary receives nothing
C) The gift converts to a cash legacy of equal value
D) The beneficiary receives nothing unless the will states otherwise
D) The beneficiary receives nothing unless the will states otherwise
Explanation: A specific gift of shares adeems if those shares are sold, unless a provision states that new shares should pass instead.
A testator includes a clause directing that all debts be paid from their residuary estate. Their house has an outstanding mortgage. Who is responsible for paying it?
A) The mortgage is paid from the residuary estate
B) The property passes subject to the mortgage
C) The executor must sell assets to clear the debt
D) The beneficiary must personally repay the mortgage before inheriting
D) The beneficiary must personally repay the mortgage before inheriting
Explanation: s.35 AEA 1925 states that secured debt remains attached to the property, unless the will expressly states otherwise.
