Interpretations, Alterations And Revocations Flashcards
(22 cards)
What are the two basic presumptions used to establish testators intentions ?
- Non-technical words bear their original meaning
- Technical words are given their technical meaning
What if a court cannot determine the meaning of a gift ?
Then usually it will fail
Under what circumstance can a court rectify a will ?
Where testators intentions are clear but the wording of the will does not bring them into effect
(Only if there is a clerical error)
When is the will said to speak from ?
The date of death so will is interpreted to dispose of all property owned at death
What happens to a gift fails and what might cause gifts to fail ?
Taken by residuals beneficiary:
- uncertainty
- beneficiary witnesses will
- Divorce or dissolution
- ademption
- lapse
- disclaimer
- forfeiture
What is ademption ?
Gift will fail if testator no longer owns the property at death, or the property has changed substantially
What is the basic rule of lapses ?
gift fails or lapses if beneficiary dies before testator.
If gift of residue lapses it will pass under intestacy
What is a lapse of gifts to more than one person ?
If gifts to A and B jointly and A dies before B then it passes entirely to B
If A and B in equal shares shares pass in intestacy if A dies
The act of revocation (cancelling) destroys the will - what are the three ways ?
- by a later will
- by destruction (physical)
- by marriage
What effect does a divorce have on a will ?
Same as if the spouse had died
What is a codicil used for ?
Rather then revoke an entire Will a testator may wish to make amendments through a codicil which is an additional document
Can alterations to a will be made ?
Yes they can be made on the face of the Will - must be executed like a will or bear the initials of a testator and witness in margin
What is the conditional revocation rule ?
Only intended to revoke the original wording if the substitute is effective. If substitute fails then the wording has not been revoked and original is valid.
What is a gift of personalty in wills called ?
A legacy
What is a gift of land in wills called ?
Devise
What is a general gift ?
Not a gift of particular asset but paid for out of testators estate
What is a specific gift ?
A gift of a particular asset in a testators estate
What is a demonstrative gift ?
A gift in a will try at is not a gift of a particular asset in the estate but is a gift of a quantity or amount payable out of a separate fund
When will courts use extrinsic evidence to Interpret a will ?
Where the Will provision is meaningless or ambiguous on its face or ambiguous in the light of the surrounding evidence
When can a will not be revoked by a marriage ?
Only if it is made in contemplation of marriage to a particular person not general wish of marriage
When gift left to issue who dies but survived by their own issue what is this called ?
A lapse
What part of the Will bears the burden of IHT ?
The residue and the burden of any mortgage goes to the beneficiary who is given the charged property.
