Wills: Interpretation, Alteration and Revocation

Question 1

1) What two presumptions are used by the courts to establish the testators intentions through the language of the will itself?

2) Are these presumptions rebuttable?

Answer 1

1) Non-technical Words bear their ordinary meaning; and
Technical words are given their technical meaning.

2) Yes - the presumptions are rebuttable if from the will (or any admissible extrinsic evidence) it is clear T was using the word in a different sense.

Question 2

Define the presumption the courts use that non-technical words will bear their ordinary meaning.

Answer 2

Some words have several different meanings, with the court having to try and interested the meaning testator intended in the context of the will as a whole (eg money could mean physical money, or simply everything the person owns).

Question 3

Define the presumption that technical words are given their technical meaning.

Answer 3

Re Cook example - T made gift go ‘all my personal estate. Court determined the word personal had the technical meaning of personalty as opposed to realty.

Question 4

Explain the courts general approach to establishing intention of a T.

Answer 4

The courts will focus on the ordinary meaning of the words used, but will also take account of context and common sense.

Question 5

As set out by s21 of the Administration of Justice Act 1982, explain the two part test as to how courts can use the admission of extrinsic evidence to aid the interception of a will.

Answer 5

1) The section applies to a will:
a) in so far as any part of it is meaningless;
b) in so far as the language used in any part of it is ambiguous on its face;
c) in so far as evidence, other than evidence of T’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

2) If one of the above applies, the court can use the intrinsic evidence, including evidence of T’s intention, to assist its interpretation.

Question 6

Summarise s21 of AJA, and how it allows the admission of extrinsic evidence to aid the interpretation of a will.

Answer 6

Section 21 permits extrinsic evidence (inducing evidence of declarations made by T) to be admitted to interpret the will so far as any part of the will is rendered meaningless/ language used is ambiguous or evidence shows language is ambiguous in light of surrounding circumstances.

Question 7

Explain the requirements which need to be met for a court to rectify a will.

Answer 7

Arises where T’s intentions are clear but the wording of the will does not affect the intention.

S20 AJA:

If a court is satisfied that a will is so expressed that it fails to carry out T’s intentions, in consequence of:

a) a clear clerical error; or
b) of a failure to understand his instructions

it may order that the will is rectified to carry out T’s intentions.

Question 8

Define clerical error (rectification of wills)

Answer 8

Clerical error refers to something in the will which has been written/ omitted by mistake.

Question 9

What is the basic rule (s24 AJA) regarding the interpretation of the subject matter of gifts (property) passing in the will?

Answer 9

The will is interpreted as if it had been executed immediately prior to T’s death.

Eg a gift of all my estate, or my remaining estate, will refer to the property owned by the testator at the time they died, not at the time the will was made.

Question 10

How can a contrary intention be shown in a will (regarding the disposition of property)?

Answer 10

Words referring to the present (provided the wording is essential to the description of the asset). Eg ‘the house I NOW own’.

Question 11

Describe the general rule in relation to beneficiaries named in a will.

Answer 11

References to beneficiaries are construed as to people alive at the time of the will’s execution (ie the will speaks from the date of execution).

Eg gift to Kate’s eldest daughter has effect of the person fluffing that description at the time.

Question 12

Describe the general rule relating to named family beneficiaries (eg my children).

Answer 12

This is taken to mean blood relatives (eg biological children not step children/ children of a spouse). This presumption will be rebutted if the will provides as such.

Question 13

True or False: Adopted children are usually deemed children of the adoptive parents for the purposes of beneficiaries in wills?

Answer 13

True

Question 14

Explain the gender recognition act rule regarding beneficiaries of wills.

Answer 14

Beneficiary who obtains full gender recognition certificate (transgender) is legally recognised as their new gender. this does not apply to property left to them in a will made before 4 April 2005 but do after.

(eg beneficiary who is now recognised as a woman will be deemed as a daughter under the will if it was made and executed after 4th April 2005 but not if it was made beforehand).

Question 15

Are words civil partner/ husband or wife interchangeable?

Answer 15

No. A gift to ‘my wife’ will fail if they in fact form a civil partnership.

Question 16

Explain how a gift in a will can fail through uncertainty (of subject matter or recipient).

Answer 16

If it is not possible for the wording of the will to identify the subject matter/ recipient of the gift correctly (and the court can not use the rectification method), the gift will fail due to the subject matter being uncertain.

Question 17

Name the one exception where a gift may not fail if the beneficiary is uncertain.

Answer 17

Where a gift is left to a charity but the charity is not defined. Provided it is clear it is for a charitable purpose, court can direct the gift to a charity them deem was intended to benefit.

Question 18

Explain whether a gift to a beneficiary fail if the will is witnessed by the beneficiaries:

a) child;
b) unmarried partner;
c) husband/ wife

Answer 18

a) Gift won’t fail;
b) Gift won’t fail;
c) Gift will fail (but will is still valid).

Question 19

What happens if a gift in a will is left to a spouse which the T divorced after making the will?

Answer 19

The gift will fail as the spouse will be treated (for the purposes of the will) as they were deceased from the date of divorce/ annulment or dissolution of the marriage.

Question 20

Explain how a gift will fail through ademption.

Answer 20

Specific legacy will fail if T no longer owns that property at death. The gift will be said to have been adeemed.

Question 21

Name the two difficulties when determining whether a gift has adeemed.

Answer 21

a) gift has changed in nature - it must be determined if the gift is substantially the same (eg if company shares owned by T at the time of execution of will have since been converted into shares in a new company which took that company over, gift is still valid as it has not changed in substance).

b) gift left in will was replaced by another similar item during T’s lifetime (eg a car). The general rule is the gift will have adeemed if it was replaced. However this depends on the nature of the item - if it is capable o increasing or decreasing (eg my shares or my jewellery) it’s unlikely the gift will fail.

Question 22

What is a codicil and what is its significance?

Answer 22

It is a document drawn up to republish (ie refresh) the will. It must be executed in the same way as a will.

significant for two reasons:

a) if beneficiary or partner witnesses the initial will, but does not witness the codicil, they will then be entitled to their gift provided the codicil is properly executed;
b) if a gift is adeemed, but replaced with a similar item (eg a gold watch) the codicil will reinstate that gift. This principle also applies to beneficiaries.

Question 23

Explain rule where beneficiary and testator die and it is unclear who died first.

Answer 23

Eldest of the two is presumed to have died first.

Question 24

Explain rules around lapse of a gift to more than one person.

Answer 24

Gift to A and B and A dies before T, the whole gift passes to B. However if left in equal shares, and A dies before T, B will only get their share and lapsed share will pass under intestacy rules.

Question 25

Define the implied substitution provision regarding lapse of gifts.

Answer 25

Gift to T’s children that lapses means there will be an implied substitution provision, in that where the child of T dies, the gift will automatically pass to the severing issue of the T’s child.

Question 26

Explain the process of disclaiming a gift.

Answer 26

Beneficiary can reject the gift (disclaim the gift). This means it then passed under the residuary estate, or intestacy if the gift is already a residuary gift.

Question 27

Explain the conditional revocation power of the courts .

Answer 27

Courts may choose to use the conditional revocation principle (AKA ‘dependant relative doctrine’). This is an option where the court feel it appropriate to construe T’s intention to revoke an earlier will was conditional upon a particular event (most commonly the effectiveness of a new will and that will being put in place). If the condition they feel is applicable was not fulfilled, renovation of the old will can be deemed invalid and can therefore still remain in effect.

Question 28

Whose consent is needed to bring a trust to an end?

Answer 28

The consent of all beneficiaries with an interest in the trust, including those benefices who could possibly become entitled. These beneficiaries must be ascertained, 18 years old or over and be of sound mind.

Question 29

An elderly client wishes to make a will. The client has recently re-married and he and his new wife both have children from their previous marriages. The client is very wealthy and owns the matrimonial home in his sole name. The wife is considerably less well off, and has few assets of her own. The client would like to make sure that his wife can remain in the house and has sufficient to live comfortably while she is alive, but ultimately he would like his estate to pass to his children, not hers.

What is the best way to achieve this?

Answer 29

To make a will that leaves a life interest in his estate to his wife and the residue to his children.

Question 30

Explain how someone can make valid alterations to their will.

Answer 30

1) They can amend a provision (ie changing the entitlement of a beneficiary from £20,000 to £50,000). This will only be effective if it is properly executed (eg T must sign next to amendment and have it witnessed under the same conditions necessary for a will to be executed).

2) If an amendment (like the above) is not properly attested, the initial gift will still be valid so long as it can be seen what the initial gift was. If it cannot be seen what thenintiail gift was (ie it is completely obliterated/ blotted out) the gift will be invalid.

Question 31

List the ways a will can be revoked.

Answer 31

1) Marriage of the testator;
2) Valid creation of a codicil;
3) Destruction with the intention to be revoked (either by T or by another in their presence and by their direction);
4) Making a new will;
5) Revocation of part (where a section or provision of a will is amended/ revoked and properly executed).

Question 32

Does destruction of a will accidentally revoke the will?

Answer 32

No

Question 33

Define what a codicil is?

Answer 33

A codicil is a separate document which amends, updates, adds to, or revokes parts of a will. The document does not completely override the initial will, but both the codicil and the initial will are to be examined on death to establish how the estate passes. the codicil will only be effective if it complies with the same s9 formalities of a validly created will (eg signed by T in front of witnesses, witnessed in the presence of the T, in writing etc).

Question 34

Explain the courts power of rectification.

Answer 34

Court has power to rectify a will where it is expressed in a way which clearly fails to carry out T’s instructions as a consequence of:

a) Clerical error;
b) A failure to understand the instructions given for the will to be drawn up.

Question 35

Can a codicil have the effect of republishing a will?

Answer 35

Yes (eg T makes will and then gets married - revoking the will. A valid codicil being drawn up will have the effect of republishing this will).

Question 36

Where the will is silent as to inheritance tax, which beneficiary usually bares the IHT?

Answer 36

The residuary beneficiary. Specific gifts are therefore free of IHT unless provisions state otherwise.