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