Interpretation and Rectification Flashcards
When will extrinsic evidence be allowed?
Part of will is meaningless
Language is ambiguous
Evidence other than evidence of testators intention shows that language used is ambiguous considering circumstances
What is rectification?
When court fixes a will
Is rectification ever changing the meaning of a will?
No, only changing the language to reflect the true intention/meaning
What is the deadline to apply for rectification?
6mo after grant of probate
OR require court permission
Who has burden of proof for rectification?
Person seeking the rectification
What errors can be rectified according to s.20?
Clerical
Failure to understand drafters instructions
What is a specific gift?
My car
What is a general gift?
300 shares in British Gas
500$ from my estate
What is a demonstrative gift?
500$ from my TD bank account
What is a pecuniary gift?
General gift of money not specified from where
What is residuary gift?
Everything that is left over
What happens if a gift fails?
Goes to residuary
What happens if residuary gift fails?
Intestacy/partial
What 3 things must be certain for a gift not to fail?
Intention (meaning of words)
Subject matter (the items)
Objects (who are the beneficiaries)
What is ademption?
When a gift is destroyed, lost or lawfully changes hands before death
fails
If gift adeems can beneficiary have compensation?
No
When will a gift of shares adeem?
Change in substance, no longer same shares in same company or company exchanged debentures with new ones
When will shares NOT adeem?
Liquidation and amalgamation with new company
Changed name of company
Subdivided existing shares
In what 4 cases will ademption NOT occur
- court interprets gift as general or demonstrative
- subject was disposed of without authority
- property not changed in substance
- clause to avoid ademption
What is abatement?
The order in which assets are applied by the executors
When does the will ‘speak from’
Date of death – ‘my car’ (as it is on date of death)
For what do wills speak from the date of execution?
With reference to a beneficiary
‘eldest child of mark’ will = the oldest child at date of execution
If testator dies and property is destroyed at the same time, is property said to have been destroyed before or after death?
Before – adeems
What happens if a beneficiary dies before the testator?
Gift fails and goes to residue
