Interpretation, alteration and revocation

Question 1

Basic presumptions on interpretation

Answer 1

In trying to do this the court applies two basic presumptions:
- Non-technical words bear their ordinary meaning
- Technical words are given their technical meaning

Question 2

Establishing the testator’s intention

Answer 2

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

Question 3

Establishing the testator’s intention - Basic rule

Answer 3

The court is not prepared to consider other evidence in order to try to establish what the testator intended.

Question 4

Establishing the testator’s intention - Exceptions

Answer 4

Some circumstances in which the court will look at external or extrinsic evidence:
- In so far as any part of it is meaningless
- In so far as the language used in any part of it is ambiguous on the face of it
- 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 the surrounding circumstances

Question 5

Rectification

Answer 5

The court has limited powers to correct/rectify a will. This arises where the testator’s intentions are clear but the wording of the will does not carry them into effect. If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions of a clerical error or of a failure to understand his instructions it may order that the will shall be rectified

Question 6

Failure of gifts - Basic effect

Answer 6

Where a gift fails the basic effect is that the subject matter falls into the residuary estate and will be taken by the residuary beneficiary

Question 7

Failure of gifts - Uncertainty

Answer 7

If it is not possible from the wording of the will to identify the subject matter of the gift or the recipient the gift will fail for uncertainty.

Question 8

Failure of gifts - Beneficiary witnesses will

Answer 8

If a beneficiary or their spouse acts as a witness the gift to the beneficiary fails. The beneficiary or spouse remains a competent witness and the will is validly executed

Question 9

Failure of gifts - Ademption

Answer 9

A specific legacy will fail if the testator no longer owns that property at death. If the asset has been retained but has changed in nature since the will was made the question is whether the asset is substantially the same, having changed merely in name or form or whether it has changed in substance. Only if there has been a change in substance will the gift be adeemed

Question 10

Codicil - Definition

Answer 10

A testator may wish to add to or change a will in a minor way and so may execute a codicil - this is a supplement to a will which to be valid must be executed in the same way as a will

Question 11

Failure of gifts - Lapse

Answer 11

A gift in a will fails or lapses if the beneficiary dies before the testator. The property then falls into residue unless the testator has provided for the possibility of lapse by including a substantial gift

Question 12

Failure of gifts - Lapse - Exception

Answer 12

S. 33 - an exception to the doctrine of lapse, it applies to all gifts by will to the testator’s children or remoter issue unless contrary intention is shown in the will. It provides that where a will contains a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator leaving issue of their own who survive the testator the gift does not lapse but passes instead to the beneficiary’s issue

Question 13

Revocation - General rule

Answer 13

The rule is that a testator is free to revoke their will at any time provided that they have capacity to do so.

Question 14

Revocation - Situations in which a will can be revoked

Answer 14

• By a later will or codicil
• By destruction
• By marriage/forming a civil partnership

Question 15

Alterations - Definition

Answer 15

Make changes on the face of the will itself. If the alterations were made before the will was executed they are valid provided that the testator intended the alterations to form part of the will. Alterations made after the will was executed will be valid if those alterations were themselves executed like a will

Question 16

Alterations - Presumption

Answer 16

Any alterations are presumed to have been made after the will was executed unless the contrary can be proved.

Question 17

Alterations - Rules for if they’re made after the will was executed

Answer 17

1) They’re valid if they themselves were executed like a will - signed and witnessed like a will - the initials of the testator and the witnesses in the margin will suffice
2) An unattested alteration made after the will was executed is usually invalid - requirement is that the original wording must be apparent

Question 18

Alterations - Rules for if they’re made after the will was executed - Exception to the requirement that to be valid an alteration must be executed

Answer 18

This occurs where the testator makes an amendment which obliterates the original wording. The effect is that there is a revocation of the original wording by destruction provided that the act of destruction is accompanied by the intention to revoke. Words obliterated by accident are not revoked

Question 19

Alterations - Rules for if they’re made after the will was executed - Exception to the requirement that to be valid an alteration must be executed - Conditional revocation rule

Answer 19

In some instances where the testator obliterates the original wording the court may be prepared to apply the conditional revocation rule – most likely to apply whether the testator obliterates the original wording and at the same time adds some substitute wording – the court finds that the testator only intended to revoke the original words on condition that the substitute words were effective

Question 20

Burden of a charged debt

Answer 20

If the wills is silent the beneficiary who is given charged property (something with a mortgage) bears the burden of the charged debt. The residue bears the burden of other debts and of IHT on property in the UK which beets in the PRs

Question 21

Exception to allowing extrinsic evidence

Answer 21

If the provision is meaningless or ambiguous on its face or ambiguous in the light of the surrounding circumstances

Question 22

Subject matter of a gift

Answer 22

The basic rule is that assets which form the subject matter of a gift are determined according to those in existence at the date of death. However f they used the word ‘my X’ then the court will interpret this as meaning X at the time of writing the will. A specific legacy will fail if the testator no longer owns that property at death. However if it is generic that it is capable of increase or decrease between the date of the will and the date of death then this will be taken to mean the gift at the date of death.

Question 23

What does divorce do

Answer 23

Divorce does not revoke a will

Question 24

If the will is silent on IHT

Answer 24

Legatee takes the property free from IHT

Question 25

What if the original wording is apparent?

Answer 25

It will stand and the alteration is invalid