Chapter 3: Interpretation of wills, alterations and amendments

Question 1

what is a legacy?

Answer 1

gift of personality

Question 2

what is personalty

Answer 2

all property that is not land (physical objects, money, interests under a trust, debts owed)

Question 3

what is a devise?

Answer 3

gift of land

Question 4

what are the 5 types of legacies?

Answer 4

specific
general
pecuniary
demonstrative
residuary

Question 5

what is a specific legacy?

Answer 5

Item or collection separated from other personal items and given to a particular person.

Question 6

what is a general legacy?

Answer 6

Given from any part of the estate (not a specific source) e.g money from the estate.

Question 7

Is a pecuniary legacy specific or general?

Answer 7

can be both

Question 8

what is an annuity? what kind of legacy?

Answer 8

pecuniary - regular payments made out of the estate to a specific person.

Question 9

what is a demonstrative legacy ‘almost always’

Answer 9

pecuniary

Question 10

what is a demonstrative legacy?

Answer 10

The will directs - must be paid out of a particular fund.

Question 11

what is the general principle of demonstrative legacies?

Answer 11

If there is NOT ENOUGH - general principle is that it is paid PRIMARILY not necessarily out of the named fund (make up shortfall from other available estate funds).

Question 12

what is a residuary legacy?

Answer 12

what is ‘left’ of the estate

Question 13

What happens when there is not clause to deal with residuary?

Answer 13

partial intestacy

Question 14

what legacy can a Devise not be

Answer 14

pecuniary

Question 15

WHEN might a gift fail?

Answer 15

a person disclaims

class gifts

beneficiaries dying at the same time/ incident

Question 16

what is the general rule of liabilities for a gift?

Answer 16

if the will does not state who will pay - paid by the gift recipient.

Question 17

What is the general principle of a closing a class gift?

Answer 17

The class (group) will close at the time of death of testator.

Question 18

what applies when there is an injustice of a class gift?

Answer 18

class closing rules

(class closes when a member of the class first becomes entitled to possession - no one born after can benefit)

Question 19

what is the commorientes rule?

Answer 19

persons dying together?

Question 20

what is the presumption when two people died at the ‘same time’?

Answer 20

The oldest died first

Question 21

what are the categories for why gifts fail?

Answer 21

ademption

abatement

lapse

beneficiary witnessed a will

caused death

Question 22

what is ademption?

Answer 22

item specifically gifted is no longer apart / gone out of the estate at the time of death = FAILS (receive nothing)

Question 23

what does ademption apply to?

Answer 23

only specific gifts - cannot be a replaced/ similar item

Question 24

what happens if an item is damaged/ ruined after the death of a testator?

Answer 24

Executors might be liable to pay any insurance to the intended recipient

Question 25

what happens if there is no clear evidence the gift outlived the testator?

Answer 25

the gift adeems

Question 26

what is abatement?

Answer 26

process whereby the estate is reduced when liabilities/ debts are paid out.

Question 27

what happens when there is a shortage of assets/ funds in the estate ?

Answer 27

Pay specific legacies before general only pay general legacies that can be paid out of left over assets

Question 28

what is the principle for demonstrative legacies in abatement?

Answer 28

treated as specific - paid first

Question 29

what is a lapse?

Answer 29

when there is nobody to give a gift to (recipient died/ disqualified).

Question 30

what is the general rule of lapse?

Answer 30

fall into estate residue UNLESS already residuary gift (partial testacy)

Question 31

what happens if a gift is of limited interest and there is no one to give the gift to?

Answer 31

goes to next person in line under the will

Question 32

what is the exception to lapse?

Answer 32

intended beneficiary is a child - dies before testator- has child/ children - goes to their children.

Question 33

when can a beneficiary NOT take a gift?

Answer 33

they/ their spouse (must be married) witnessed the will

Question 34

What happens to the will if a beneficiary witnesses?

Answer 34

the will is still valid but cannot receive gift

Question 35

what is the provision on ex-spouses?

Answer 35

appointing ex-spouse an executor/ leaving ex- spouse property, shall take effect as if they died (VOID)

Question 36

What happens if the recipient caused death?

Answer 36

Cannot profit from their crime. both murder & manslaughter - defence is not relevant.

Question 37

what are the exceptions for alterations/ amendments to a will?

Answer 37

Executed in accordance with s9 (formalities) Where is it impossible to read what was in the original will

Question 38

what happens if the alteration completely covers the words of the original will?

Answer 38

The words underneath are treated as blank - ineffective

Question 39

what is the general presumption on timing of executions?

Answer 39

any amendments made will be treated as being made AFER EXECUTION UNLESS EVIDENCE to show otherwise.