Interpretation, Alteration & Revocation

Question 1

What presumptions do the courts apply about technical & non-technical words in wills?

Answer 1

Non-technical words bear their ordinary meaning

Technical words are given their technical meaning

Question 2

When will the court consider external or extrinsic evidence to help ascertain intention of testator?

Answer 2

Only used to interpret:

• A part of the will which is meaningless
• Language which is ambiguous on the face of it or in light of the surrounding circumstances

Question 3

As regards property, when does a will speak from?

Answer 3

The date of death

(unless contrary intention appears in the will)

Question 3

What is the court’s power of rectification?

Answer 3

Very limited power to correct a will where it does not carry out the testator’s intentions because of:

• A clerical error
• Failure to understand instructions by the solicitor who drafted it

Question 4

Regarding property, when will a will not speak from the date of death?

Answer 4

If a contrary intention appears in the will

eg. words referring to present time (‘the house which I now own’)

Question 5

As regards people, when does a will speak from?

Answer 5

The date of execution

(Unless a contrary intention appears in the will)

Question 6

When a will refers to a class of beneficiaries in a family (eg. ‘my children’), who will this be taken to refer to?

Answer 6

Blood relationships only (unless contrary intention in will)

Nb. Adopted children are treated as the children of their adoptive parents rather than their birth parents

Question 7

What happens if a gift in a will fails?

Answer 7

It falls into the residuary estate& is taken by the residuary beneficiary

Question 8

What are 7 ways a gift might fail?

Answer 8

Uncertainty

Beneficiary witnessing the will

Divorce/dissolution

Ademption

Lapse

Disclaimer

Forfeiture

Question 9

When will a gift fail for uncertainty?

Answer 9

If it is not possible to identify the subject-matter or recipient

Exception: if it is a gift to a charity which does not sufficiently identify the charity

Question 10

What is the exception to the rule that a gift in a will fails if it is uncertain?

Answer 10

If the gift is to a charity which does not sufficiently identify the charity → court can direct which charity will benefit

Question 11

What happens if a beneficiary, their spouse or civil partner, witnesses a will?

Answer 11

Any gift to the beneficiary (or their spouse or civil partner) fails

Nb. They remain a competent a witness, so the will is still validly executed

Exceptions:

• If will validly executed without beneficiary’s signature
• If codicil confirming the original will which is not witnessed by the beneficiary

Question 12

What are the 2 exceptions to the rule that a gift to a beneficiary fails if the beneficiary witnesses the will?

Answer 12

• If will validly executed without beneficiary’s signature
• If codicil confirming the original will which is not witnessed by the beneficiary

Question 13

What is the effect of divorce or dissolution on a will?

Answer 13

If marriage / CP is dissolved/divorce after date of will any property bequeathed to the ex is treated as if former spouse died on the date of divorce

Question 14

What is ademption?

Answer 14

When a specific legacy fails because the testator no longer owns that property at the time of death

Includes if asset has been retained but changed in substance, or if testator disposed of specific item & then acquired a different item answering the same description

Question 15

Does a legacy fail if the testator does not own the property at the time of death?

Answer 15

Depends on the type of gift

General gift (‘100 shares in X’) does not fail: PRs must purchase the asset using funds from the estate

Specific gift: adeems (ie. fails)

Question 16

When will a gift lapse?

Answer 16

If the beneficiary dies before the testator

Exception: if will contains gift to testator’s issue who predeceases testator, leaving surviving issue of their own, gift instead passes to the beneficiary’s issue (s33 WA)

Question 17

If order of death cannot be proved, who will be deemed to have died first?

Answer 17

The older person

Question 18

Will a gift to two or more people as joint tenants lapse if one of the JTs has predeceased the testator?

Answer 18

Only lapses if all JTs have predeceased the testator

(Nb. does not apply if the gift contains words of severance)

Question 19

What is the exception to the rule that a gift lapses if a beneficiary dies before the testator?

Answer 19

If the will contains a gift to the testator’s issue who predeceases the testator, leaving surviving issue of their own, the gift does not lapse → passes to the beneficiary’s issue (s33 WA)

Question 20

What happens if a beneficiary disclaims a gift?

Answer 20

The gift ‘fails’, & falls into the residue

The beneficiary is treated as having predeceased the testator → their issue can replace them under s33 WA

Question 21

What is the forfeiture principle?

Answer 21

A person can’t benefit from the estate of someone they have unlawfully killed

NB. Will be treated as having predeceased the testator → their issue can replace them under s33 WA

Question 22

What is revocation of a will?

Answer 22

Formal act of cancelling or withdrawing a will → nullifies will (either in whole or in part)

Question 23

When can a testator with testamentary capacity revoke their will?

Answer 23

A testator with testamentary capacity is free to revoke their will at any time

Question 24

What are 3 methods of revocation?

Answer 24

1. By later will or codicil
2. By destruction
3. By marriage/forming a civil partnership

Question 25

What is a codicil?

Answer 25

A document executed in the same way as a will which supplements an existing will & has the effect of republishing it

• Can be used to amend, add to or revoke in part an existing will
• Testator must have intended to republish the will
  -Expressly in codicil; or
  -Inferred from reference to existing will

Question 26

How can a will be revoked by later will or codicil?

Answer 26

By a declaration to this effect in the later/will codicil

Question 27

If a later will does not contain an express revocation clause, will it revoke any earlier will or codicil?

Answer 27

Yes to the extent that they are inconsistent

→ Complete revocation of earlier will (where totally inconsistent); or

→ Partial revocation: the 2 wills are read together to ascertain testator’s intentions

Question 28

What is the doctrine of conditional revocation?

Answer 28

The court may construe a testator’s intention to revoke an earlier will as being conditional upon a particular event (eg. effectiveness of new will)

If the condition is not satisfied, the revocation may be held to be invalid

Question 29

Can a codicil be used to revive a previously-revoked will?

Answer 29

Yes, so long as there is evidence of the testator’s intention to revive

Question 30

How can a will be revoked by destruction?

Answer 30

Requires an act of physical destruction + the intention to revoke

Must be carried out by testator themselves, or by someone else in testator’s presence by their direction

Question 31

Will an act of symbolic destruction (eg. crossing out, writing ‘revoked’) revoke a will?

Answer 31

Generally, not sufficient

If vital part (eg. signature) is destroyed in the symbolic destruction, it may revoke the entire will

If the part destroyed is less substantial or important, the partial destruction may revoke only that part which was actually destroyed

• Ask: Is the remainder of the will intelligible? Can it still operate in absence of the destroyed part?

Question 32

What is the effect of marriage or civil partnership on a will?

Answer 32

Revokes the will

Question 33

When will marriage after executing a will not revoke the will?

Answer 33

If

(a) It appears from the will the testator made that will in expectation of forthcoming marriage to a particular person; and

(b) The testator intends that the will is not revoked by the marriage

Question 34

What is the doctrine of mutual wills?

Answer 34

Two people make an agreement as to the disposal of their estates using similar wills

→ First testator dies without revoking & the second testator then tries to revoke,

→ Court may impose a constructive trust over the survivor’s estate in favour of the beneficiary under the original mutual will

Question 35

Will alterations made before the will was executed be valid?

Answer 35

Yes - valid if the testator intended the alterations to form part of the will

Question 36

Will alterations made after the will was executed be valid?

Answer 36

Yes - valid if alterations executed like a will

(Initials of testator & witnesses in margin next to amendment will suffice)

Question 37

What happens if an invalid alteration is made to a will?

Answer 37

The original wording still stands provided that it is apparent

• Must be capable of being read in will by ordinary means (light, magnifying glass)
• Will not be apparent if have to ascertain wording using extrinsic evidence, interference with the will, producing another document etc.

Question 38

What happens if a testator obliterates the original wording of a will by destruction when intending to make an alteration?

Answer 38

It revokes the original wording so long as is accompanied by the intention to revoke (does not have to be executed)

Nb. Courts may be prepared to apply doctrine of conditional revocation here, particularly if testator adds substitute wording at same time

• ie. testator intended to revoke original words on condition substitute wording effective → it isn’t effective because unexecuted, so original words not revoked
• Court will look to any evidence to see if those original words can be reconstructed