2. Wills: Interpretation, Alteration and Revocation Flashcards
(181 cards)
What is the purpose of court interpretation in wills?
To establish the testator’s intentions.
What is the presumption regarding the meaning of non-technical words in a will?
They are given their ordinary meaning.
What is the presumption regarding the meaning of technical words in a will?
They are given their technical meaning.
When can the presumption regarding the meaning of words in a will be rebutted?
When the will clearly shows that the testator intended to use a word in a different sense.
What factors does the court consider in interpreting a will?
Ordinary meaning, context, and common sense.
When will the court consider external evidence in interpreting a will?
When the wording is meaningless, ambiguous, or unclear in the will or in the light of surrounding circumstances.
What is the aim of rectification in relation to a will?
To rectify the will to carry out the testator’s intentions when the wording does not effectively do so.
What are the two situations in which a will may fail to carry out the testator’s intentions?
Due to a clerical error or a failure to understand instructions.
What is considered a clerical error in relation to a will?
An error of a clerical nature, such as writing or omitting something by mistake.
What is the scope of Section 20 AJA in relation to rectification of a will?
It is very narrow and does not apply to misunderstandings of the law or issues of the testator’s knowledge and approval.
What is the basic rule regarding the determination of assets passing under a will?
Assets are determined according to those in existence at the date of death.
When does a will ‘speak from the date of death’?
Unless a contrary intention appears in the will.
What are examples of words that indicate a contrary intention in a will?
Words that refer to the ‘present’, to a specific asset, or to a generic collection of assets.
What does it mean when a will states ‘the house I now own’?
It refers to the house the testator currently owns.
What does it mean when a will states ‘my car’?
It refers to the car the testator owned at the date of the will.
What does a generic will state?
Collection of cars at date of death.
How are beneficiaries identified in a will?
By name or description.
What is the general rule for beneficiaries in a will?
Alive at the time of execution.
What happens if a beneficiary is named but predeceased the testator?
Doctrine of lapse applies.
How is family described in a will?
By their relationship to the testator.
What is a class of beneficiaries?
Group fulfilling a description, e.g. ‘my children’.
When does a class close for new beneficiaries?
When the first beneficiary in the class obtains a vested interest.
Who are included in gifts referring to blood relationships?
Stepchildren are not included unless contrary intention.
What is the meaning of ‘issue’ in relation to children?
Direct descendants of any generation, including adopted children.