Establishing entitlement under the will Flashcards
(17 cards)
When will the court admit external evidence to ascertain the testator’s intentions?
Where:
(a) any part of the will is meaningless;
(b) language is ambiguous on the face of it;
(c) if evidence proves the part is ambiguous in light of surrounding circumstances
What is the court’s power of rectification?
Not to rewrite the will, but to correct the will when the testator’s intentions are clear but the wording does not reflect their intentions.
When does the power of rectification arise?
If the testator’s intentions aren’t reflected due to:
(a) a clerical error; or
(b) a failure to understand instructions
E.g. a very rich person with £500,000 in their bank wishes to gift this in their will, their will says £5,000 from their bank and doesn’t deal with the rest, this is a clerical error that the court is likely to rectify.
What date is relevant for interpreting the will, regarding assets?
The will is said to speak from the date of death.
Meaning, that the will is treated as if it was executed just after death, so ‘the rest of my estate’ = whatever remains after death and ‘the family house’ = the family house on death
As the will ‘speaks from the date of death’, when can a contrary intention be shown?
By the use of particular words, often ones which refer to the present (when the testator made the will), such as:
- ‘Now’;
- ‘My’ if referring to a specific asset (unless referring to a collection)
What date is relevant when considering the identification of beneficiaries in the will?
The will speaks from the date of execution.
Therefore, any description will be interpreted as what it meant at the time of execution.
What date is relevant when considering the identification of beneficiaries in the will when it has been amended by the codicil?
The date of execution of the codicil itself. The codicil effectively republishes the will.
When does a gift lapse?
When the intended beneficiary pre-deceases the testator
When does a gift adeem?
When the subject matter of the gift is sold before the testator’s death (Especially an issue with specific gifts)
What happens if a beneficiary or their spouse witnesses a will?
The gift to the beneficiary will fail.
If a beneficiary or spouse of a beneficiary witnesses a will, does this mean their gift will 100% fail?
No, as there is the possibility of republishing the will via a codicil, amending previous issues with the will.
What effect does divorce have on a will?
The ex-spouse is treated as having pre-deceased the testator, so any gifts or appointments in the will is null and void.
What is the main exception to gifts lapsing?
If the intended beneficiary is the issue of the testator and they have their own children, the law automatically substitutes the gift as being to the grandchild
What is a disclaimer in distribution?
A beneficiary can (disclaim) refuse the gift, which:
- will fall into the residue; or
- if a gift of residue, will pass under intestacy rules.
What is the forfeiture rule?
A person cannot benefit from an estate if they have unlawfully killed the testator; the effect is that they’re treated as having pre-deceased the testator (substitution rules still apply)
What happens when there are two wills and the latter one doesn’t revoke the former, which will prevails?
Both are valid wills. However, if there are any conflicts regarding entitlement, the latter provisions shall prevail.
Which is binding:
Mutual wills; or
Mirror wills?
Mutual Wills.
Equity intervenes with a mutual will, as they were made in the agreement that the other wouldn’t revoke nor change their will.
