Wills WS2

Question 1

What are the two presumptions the court has in terms of the wording of the will?

Answer 1

The court applies two basic presumptions:

1) Non-technical words bear their ordinary meaning (.e.g money can mean notes and coins, but also mean everything an individual owns)

2) Technical words - are given their technical meaning (e.g. personal will mean personalty rather than realty)

Presumptions may be rebutted if from the will (and any admissible extrinsic evidence it is clear that the testator was using the word in a different sense)

Question 2

What is ‘personalty’?

Answer 2

This is property which is not land, it therefore includes all physical objects described as ‘chattles’ as well as money, interests under a trust and any debts owed by people to the deceased.

Question 3

When does the court look at external or extrinsic evidence in order to ascertain the testator’s intentions?

What are examples of extrinsic evidence?

Under s21 Administration of Justice Act.

Answer 3

This 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 the face of it
c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

E.g. in Thorn v Dickens the testator left all his will ‘all to mother’ on th face of it no ambiguity, however, the surrounding circumstances as the mother was already dead when the testator made his will and the testator knew this.
Extrinsic evidence was permitted which shows that the testator was in the habit of referring to his wife as ‘mother’ and was allowed as there was no one fitting the description of the ‘mother’ when the will was made.

Question 4

What is the court’s power in terms of rectifying the will?

S20 Administration of Justice Act 1982.

Remember: testator must have had intention.

Answer 4

The court has no power to rewrite the will at all.

Exception - the court has a very limited power to correct or rectify a will. This arises when the testator’s intentions are clear, but the wording of the will does not carry them to the effect.

This is if the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions due to
a) a clerical error ‘e.g. writing or omitting something by mistake’
b) failure to understand the testators instructions.

NOTE. The testator must have had ‘intentions’ and a will cannot be rectified to include something the testator never thought about.

Question 5

Give examples of cases where the court rectified the will?

Answer 5

Joshi v Mahida
- Will was written by the solicitor at the testator’s hospital bedside.
- The solicitor should have written ‘my one half share’ but in fact wrote ‘one half of my share’ - clerical error and rectified accordingly.

Sprackling v Sprackling
- Testator gave instructions to his solicitor to draw up a will including a gift of a farmhouse and a small parcel surrounding land to his second wife.
- The solicitor misunderstood the instructions to mean the gift was of the entire farm (including agricultural land, business premises, cattle).
- The testator’s intentions were CLEAR from the DRAFT will which the testator had written out himself and handed to the solicitor.
- The will was rectified accordingly.

Question 6

What is the difference between ‘my car’ and ‘my collection of cars’ and how is this interpreted.

Answer 6

My car - the court will interpret this as meaning the gift of the car which the testator owned at the date of the will.

My collection of cars = generic and capable of increase or decrease, therefore this will be taken to mean the cars in the collection at the date of death.

Question 7

How are beneficiaries identified in the will?

Answer 7

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

If the will contains a gift made to ‘Kate’s eldest daughter’ this is construed as a gift to the person who fulfilled that description the day the will was made.

It is subject to contrary intention appearing in the will.

‘my children’ = gift to testator’s children not step-children.

Question 8

Give an example of a case where step-children were interpreted in the will, even though the will just said ‘children’?

Answer 8

Reading v Reading - the will included a gift to ‘my wife, and any issue of mine who are alive at the start of or born during the trust period’.

The court was prepared to interpret the word as ‘issue’ as including the testator’s step children as there was sufficient evidence to demonstrate that he had intended his step-children to share a pecuniary legacy with his own children and this would include a substantial gift of residue to both his own children and step-children in the event that his second wife predeceased him.

Question 9

What is the position regarding children born as a result of the assisted reproduction under the Human Fertilization and Embryology Act 2008?

Answer 9

A gift to ‘my children’ would include any child of the legal parent under the Act.

Question 10

What is the effect of the gender recognition act 2004 regarding wills?

Answer 10

S15 - that the fact that a persons gender has become the acquired gender under the Act, does not affect the disposal or revolution of property under a will or other instrument made before 4 April 2005.

Example:
If David obtains a full gender recognition certificate as a women (Diana) in 2020.

His aunt dies in 2024 with a will leaving everything ‘to my nieces equally’. If the will is made before 4 April 2005, Diana cannot share in Ann’s estate but she can if the will is made on or after that date.

Question 11

What if the gender recognition certificate is not accepted, can this be challenged?

What are the court’s powers in this respect?

Answer 11

Yes - an application can be made to the High Court.

1) If the court is satisfied it is just to make an order, it has a wide discretion as to the appropriate order to make.

E.g. it could order a payment lump sum transfer or settlement of the property.

2) It can enquire whether a full gender recognition certificate has been issued or revoked before conveying or distributing any property.

3) Be liable to any person by reason of conveyance or distribution of property made without regard to whether a full gender recognition certificate has been issued to any person or revoked without the trustee or personal representative having been given prior notice.

Question 12

On what grounds can a gift fail?

Answer 12

1) Beneficiary or their spouse/civil partner witnesses the will (exception, if there are 3 witnesses, and the beneficiary signs one, the beneficiary’s signature will be ignored).

2) Ademption

3) Divorce - the gift is treated as dead on the day of divorce

4) Forfeiture - if the beneficiary unlawfully kills the testator, i.e. murder or manslaughter.

5) Lapse - beneficiary dies before the testator

Question 13

Explain the effect of ademption in respect of a failed gift?

Answer 13

A gift will be ‘adeemed’ in 2 circumstances

1) Where the Testator no longer owns the Property when he dies
If a specific gift is made, e.g. ‘my car’ or ‘my watch’ but that asset is sold and a replacement ‘car’ or ‘watch’ bought, there is a presumption that the testator meant to bequeath only the asset he owned at the date of the will and not the replacement

Effect : Where the property is replaced, the gift of the replacement will be adeemed and will fail.

2) Where an asset changes in substance rather than name or form. E.g. person A sells shares, and uses the proceeds to buy shares in a different company, the shares would be a change in substance and the gift will be adeemed.

EXCEPTION: if A owns shares in a company, and the company is bought by another company, the gift will have merely changed in substance and not form, and will not be adeemed.

Note: Property capable of ‘increase or decrease’ e.g. ‘all my jewelry’ - this is not specific .

Question 14

If a specific gift gets stolen can the beneficiary take the insurance monies?

Answer 14

No. If the testator dies after receiving the insurance money (and hasn’t brought a replacement asset) the beneficiary doesn’t receive anything.

They have no right to the insurance money under the terms of the gift.

Question 15

What is a codicil?

Answer 15

A codicil is supplemental to a will, which to be valid must be executed in the same way as a will.

The significance of a codicil in the context of gift property - it republishes the will as at the date of the codicil.

E.g. a testator makes a will in 1990 leaving ‘my gold watch’ to a legatee, loses the watch in 2000 and replaces it, the gift of the watch in the will is adeemed. If however, the testator executes a codicil to the will in 2003, the will is read as if it had been executed in 2003 and so the legatee will take the replacement watch.

Question 16

What does it mean if a gift lapses?

i.e. a beneficiary dies before the testator?

Answer 16

If the beneficiary dies before the testator, the gift will lapse, i.e. fail and fall into the residue estate.

Exception:
1) The will is worded as passing the gift to the holder of a particular office / class (in which case the gift passes to the class).
2) The testator has included a ‘substantial gift’ - i.e. the will specifies that if the intended recipient of the gift (X) dies before the testator, the gift instead passes to Y.

However
1) Gifts to testator’s direct descendants, i.e. children, grandchildren will pass to the issue of the intended recipient if that person dies before the testator (s33 Wills Act 1837)

Question 17

How to work out whether the beneficiary has died before the testator?

Answer 17

1) With regards to gifts to people, a will is construed on the date it is made, i.e. a gift to the ‘eldest son of X’ is the gift to the eldest son at the date of the will.

This means that the gift will fail if the eldest son, at the time the will was made, dies prior to the testator. The gift does not pass to the eldest son at the time of the testator’s death (who would have been the second eldest son at the time the will was made).

2) If a beneficiary and testator die at the same moment, i.e. in a car crash, the law assumes the oldest died first.

3) Gift to joint beneficiaries will not lapse unless all beneficiaries die, unless the gift contains words of severance, e.g. to A and B in equal shares. If the words of severance are included, if A or B dies, the gift lapses.

The lapsed share will pass under the intestacy rules, unless the testator included a substitutional gift to take effect if one of the original beneficiaries predeceased.

Question 18

What is disclaimer of a gift?

Answer 18

If the beneficiary refuses (disclaims) a gift, the gift fails

Question 19

What is the effect of forfeiture on a gift?

Beneficiary unlawfully kills the testator.

Answer 19

The gift will fail if the beneficiary unlawfully kills the testator.
I.e. murder or manslaughter.

Exception: Does not apply where a killer is insane per the meaning of McNaughten rules (where the party accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know what he was doing wrong)

In cases of manslaughter or assisted suicide:
1) The killer may apply within 3 months of conviction for relief from forfeiture
2) The time limit is strict and the court has no discretion to extend
3) Time runs from the point of sentence and not, if this is earlier, when the court accepts a defendant’s plea.

Unless contrary intention appears by the will a person who disclaims or forfeits an entitlement under a will, will be treated as having predeceased the testator.
- Therefore if the intended beneficiary is a direct descendant, the gift will pass to their issue
- Otherwise, the gift will simply pass into the residue.

Question 20

When will a gift pass to those entitled on intestacy?

Answer 20

If the gift lapses or fails and there is no residuary devise or bequest.
E.g. if the terms of the will do not say ‘remainder to X’ etc.

‘The residue’ is what is left in the testator’s estate after specific gifts
Residuary device or bequest is a direction as to what to do with that remaining property. If there is none, and the gift fails or lapses, the gift will pass in accordance with the intestacy rules.

Or the gift which lapses or fails is already part of the general residue.

Question 21

What is the effect of divorce on a gift?

Answer 21

The effect of a gift will alter by divorce, subsequent to the will.

1) If the testator divorces, this will cause any provisions of a will which envisage a testator’s spouse surviving him to act as if the divorced partner had already died.

So, if there is a gift to a spouse, who subsequently divorces the testator, and
There is no substitutional provision = gift will fail.

2) If there is a substitutional provision e.g. ‘I leave all my property to my husband, however, if my husband dies before my, my property shall pass to my children equally’.

The substitutional provision will apply.

Question 22

When is there revocation of a will?

Answer 22

A will will be revoked where

1) There is a later will / codicil : A codicil is an addition or supplement to a will.
2) There is a marriage subsequent to the will
3) The will is destroyed

Question 23

Explain how a will is revoked by a later will / codicil?

Answer 23

1) A codicil is an addition or supplement to a will.

2) This will revoke an earlier will in whole or part if there is an opening statement ‘I hereby revoke all former wills previously made by me’ - this is sufficient to revoke a will.

3) If the will doesn’t contain an express revocation clause, it operates to revoke an earlier will or codicil by implication to the extent that the two are inconsistent - this could result in complete revocation of the earlier will if the two are inconsistent.
Partial revocation - two wills will need to be read together to piece together the testator’s intentions

4) Revocation may be invalid if it is conditional upon a particular event which doesn’t happen. The earlier will can still remain effective.

Question 24

Explain how a will is revoked by a later will / marriage?

Answer 24

If the testator marries or forms a civil partnership after executing a will, the will is revoked automatically.

*This would be the case whether the testator marries someone of the same or opposite sex.
*S 18B WA 1837 has the equivalent effect for a testator who enters into a civil partnership.
*Therefore, when meeting a client, it is important to identify whether or not they plan to get married in the near future.
*Even if your client does not, you should advise on the effect of s 18 in case their circumstances change.

Exception:
1) Wills in contemplation of marriage
*If your client plans to marry/enter a civil partnership after signing their will and does not wish their will to be revoked as a result, it is possible to avoid the effect of s 18/18B by drafting the will in contemplation of marriage/civil partnership.
*The will must name the future spouse/civil partner and identify the intended ceremony.
*It must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage/civil partnership.

It is not possible to avoid revocation by making a will in contemplation of:
oA hypothetical marriage.
oA marriage civil/partnership to one person but then marry/enter a civil partnership with someone else.

*Two examples:
oEffective- ‘At the time of making this will, I expect to enter a civil partnership with [ ] and intend that this my will should not be revoked by my civil partnership with [ ].’
oIneffective- ‘I intend that this my will shall not be revoked by any subsequent civil partnership that I choose to enter.’

2) Will conditional upon future marriage
*It is common for a testator to make a will in contemplation of a marriage/civil partnership in order to make provision for their future spouse/civil partner.
*A testator may want to execute the will before the ceremony so their will is finalised before they travel abroad on honeymoon.
*In essence, is the testator’s new will (and any revocation of a previous will) also intended to be conditional upon the marriage/civil partnership?
*In the absence of express wording to the contrary the new will takes effect even if the ceremony does not.
*The testator may want this if they have died but not if the couple have separated. The will should expressly state the testator’s intention.

Two examples:
o Effective from execution and not revoked by later marriage:
‘At the time of making this will, I expect to marry [ ] and intend that this shall not be revoked by my marriage to [ ]. I intend for this will to remain effective even if I die before marrying [ ], but not if…[ ].’

o Ensures will is not revoked by testator’s later marriage but is not effective until the marriage takes place:
‘At the time of making this will, I expect to marry [ ] and intend that this will shall not be revoked by my marriage to [ ]. I intend for this will to be effective only upon by marriage to [ ] and not before.’

Question 25

How is a will revoked by being destroyed?

Answer 25

1) By burning, tearing or otherwise destroying the same.
- By the testator
- Or in the presence of the testator, by the testator’s direction, with the INTENTION of revoking the will.

2) Physical destruction is necessary, crossing out or simply writing the words ‘revoked’ across the will is not sufficient.

3) Destruction by another in a different room will not revoke the will even if it is at the testator’s direction.

4) Partial destruction - e.g. if the part destroyed is the ‘less substantial’ or ‘important’ then the partial destruction may revoke only that part which was actually destroyed.

5) Destruction by accident will not be revoked, court will look at evidence to establish the contents of the will

Question 26

Who has the burden of proof rebutting a presumption of revocation?

Answer 26

Those administering the estate of the deceased will have the burden of rebutting a presumption of revocation by showing:

1) A valid will existed when the deceased died, but was lost / damaged after death
2) The deceased did not intend to revoke their will
3) The deceased did not carry out or give instruction for the act of destruction.

If sufficient evidence can be provided to rebut the presumption, a copy of the will may be admitted to probate

Losing an original will does not stop it revoking an order will.

Question 27

What is the effect of mutual wills?

Answer 27

• One testator agrees with another testator to each make a will on terms agreed between them.
• Both testators also agree that neither of them will amend their will without the consent
• If the testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.

For example: a married couple make wills on terms where the survivor of them inherits the estate of the first to die, and on the second death everything passes to their children.

If both parties intended the survivor to be bound by the agreement, and it would be unconscionable for the survivor to change the terms of their will after the death of their spouse, equity can impose a constructive trust.

Question 28

What is the effect of revocation on mirror wills?

Answer 28

*Mirror wills are common and are the wills of a couple which mirror each other.

*For example, each couple makes a will that leaves their estate to the survivor of them, but if the other does not survive the assets pass to their children.

*Executing a mirror will does not imply that there is an agreement not to revoke the will later and there is no constructive trust imposed.

*The survivor of the couple is free to revoke their will at any time prior to the death of either of them.

Question 29

What is the effect of revocation by divorce?

Answer 29

• If a married testator divorces their spouse (or there is a dissolution of their civil partnership) the court order confirming the divorce (decree absolute) or dissolution automatically operates as a limited/partial revocation of their will.
• By virtue of s18A WA 1837 (s18C for civil partnerships) the will takes effect as if the former spouse or civil partner had died on the date of the court order unless the will expressly states otherwise. This means:
  o An appointment of the former spouse/civil partner as executor or trustee is not effective.
  o A gift in the will to the former spouse or civil partner will fail.

*If more than one executor is named in the will the executor who remains can be appointed.

*However, if the spouse or civil partner was the sole executor, a statutory order is followed, and an administrator will be appointed in the absence of any executor who can act.

*If a gift to the former spouse/civil partner fails, the items may pass to a named alternative beneficiary, and in the absence of this may pass under the general gift of residue.

*The effect of ss 18A and 18C is subject to any contrary intention expressed in the will i.e., the testator could expressly state that he/she wants a spouse or civil partner to inherit, notwithstanding any divorce or dissolution of the civil partnership.

Two examples:
o Appointment of spouse as executor is not effective but an alternative is provided, and brother will be appointed instead:
‘I appoint my wife to be the sole executor and trustee of this my will but if she shall predecease me or be otherwise unwilling or unable to prove my will before the expiration of 3 months after my death, I appoint my brothers X and Y to be the executors and trustees of this my will in her place.’

oSpouse receives nothing, in the absence of any express substitution, this gift fails, and the testator will die partially intestate:
‘I give the Residue of my estate to my wife.’

Question 30

What is the effect of revocation by divorce - partial revocation?

Answer 30

*Section 18A/C only affects wills made prior to a divorce or dissolution of a civil partnership.

*Any will made afterwards is unaffected and the testator can make whatever provision they think fit for their former spouse/civil partner.

*Section 18A/C does not affect the right of the former spouse or civil partner to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (although the court order re divorce/ dissolution might).

Question 31

What is the general rule regarding alterations?

Answer 31

General rule, that alterations are invalid unless:
1) They are made before a will was executed
2) The alterations are EXECUTED like a will (i.e. the initials of the testator and witnesses are in the same margin beside the alteration)

Where an alteration is made, which is invalid, the original wording of the will will stand.

Exception:
Obliteration: BIG BLOB, DARK BLACK PERMANENT MARKER
If original wording can no longer be read, the will will take effect as if the words have been obliterated.

If a testator makes a later codicil to the will, the original will is republished on that date, which may affect the description of the beneficiaries.

Question 32

When will the court be permitted to apply the conditional revocation rule in terms of obliteration?

Answer 32

Where the testator obliterates the original wording, the court may be prepared to apply the conditional revocation rule.

This will apply where
- Testator obliterates the original wording, and at the same time, adds some substitute wording i.e. court finds that the testator only intended to revoke the original words on condition that the substitute words were effective.

Court will look at evidence to establish whether original words can be reconstructed, including any of the methods which cannot be used when considering whether the wording is apparent (e.g. a copy of the original will).

Question 33

What trustees are allowed reasonable remuneration for being an executor under a will?

Answer 33

*The Trustee Act 2000 – s29 allows the payment of reasonable remuneration to a trustee (which includes a personal representative) for time spent and work done (even if such work could have been done by a lay person) but only if the trustee is either:
a) a trust corporation; or
b) a trustee ‘acting in a professional capacity’ - e.g. course of profession, business

Question 34

How can you avoid partial intestacy?

Answer 34

Include substitutional gifts to cover the possibility of the primary gift failing.

*For example – where residue is left to the testator’s niece, there could also be an express substitution of her children if she predeceases the testator. It is also worth considering a ‘long stop’ beneficiary to inherit if all the intended arrangements fail.
*Long stop beneficiary = a charity because there is little possibility of such a gift failing.

Question 35

Explain what needs to be done in terms of gifts to charities?

Answer 35

• It is important to identify the charitable body accurately
• Add the registered charity number
• Some charities = run as unincorporated associations (group of people joined together with a common purpose) but unlike a company, the association does not have separate legal personality. An issue to consider – how the executors will obtain a receipt from the charity for the gift? To avoid this issue - normal to authorise the executors to accept the receipt of the person who appears to be the treasurer or other proper officer of the charity.
• ‘General charitable purposes’ should be added in the event that the charitable body dissolves so that the purposes can continue to be performed by another organisation, or help establish that the testator had general charitable intention and so allow the gift to be applied to a similar charity.

Question 36

How is a gift of ‘all my estate or all the rest of my estate’ interpreted?

Answer 36

The will is interpreted as if it had been executed immediately before death.

Gift of ‘all my estate’ or ‘all the rest of my estate’ takes effect to dispose of all property the testator owned at the date of death, whether or not the testator owned it at the time the will was made.