Interpreting a Will

Question 1

re: construing a will

what does this mean?

Answer 1

establishing entitlement under a will

Question 2

re: construing a will

what will the court look at when determining T’s intention?

Answer 2

When determining T’s intention, the court will do the following:
o Look at the will as a whole
o Apply the two rebuttable presumptions
o Consider common sense
o Context at the time i.e. facts known/assumed by T

Question 3

re: construing a will

will courts consider evidence when determining T’s intention?

Answer 3

Generally, the courts will not consider evidence in determining T’s intention, but it is permitted in relation to a part of a will where the wording is:
o Meaningless;
o Ambiguous on the face of it; or
o Ambiguous in the circumstances based on evidence other than evidence of T’s intention

Question 4

re: construing a will

when will the courts consider evidence to establish intention?

Answer 4

in relation to a part of a will where the wording is:
o Meaningless;
o Ambiguous on the face of it; or
o Ambiguous in the circumstances based on evidence other than evidence of T’s intention

Question 5

re: construing a will

if evidence is considered, how is it used?

Answer 5

• Evidence can only be used to aid interpretation, not re-write the will

Question 6

re: construing a will

when will a gift fail?

Answer 6

• If the meaning is unclear, the gift(s) will fail for uncertainty

Question 7

re: construing a will

what rebuttable presumptions apply when the court is discerning T’s intention?

what can the court not do?

Answer 7

The court applies two rebuttable presumptions when discerning T’s intention:
1. Non-technical words bear their ordinary meaning
2. Technical words are given their technical meaning

The court cannot invent different meanings

Question 8

re: construing a will

explain the presumption ‘non-technical words bear their ordinary meaning’

Answer 8

o If a word has more than 1 meaning, then the court has to try to determine T’s intention by looking at the will as a whole i.e. does money inc. coins?

Question 9

re: construing a will

give an example re: ‘technical words are given their technical meaning’

Answer 9

‘personal’ has been determined to mean ‘personalty’, not ‘realty’.

Question 10

re: construing a will

when can the presumptions be rebutted?

Answer 10

• Can be rebutted by the will itself and any admissible extrinsic evidence if it is a clear T intended for the word to have a different meaning

Question 11

re: construing a will

what is meant by rectification?

Answer 11

The court cannot rewrite a will, but it can rectify a will where T’s intentions are clear, but the wording does not carry them into effect due:
o Clerical error (i.e. writing/omitting something by mistake); or
o Failure to understand T’s instructions

Question 12

re: construing a will

when will a court rectify a will?

Answer 12

where the wording does not carry them into effect due to:
o Clerical error (i.e. writing/omitting something by mistake); or
o Failure to understand T’s instructions

Question 13

re: construing a will

give examples where a will could not be rectified

Answer 13

o Solicitor misunderstood the law
o Solicitor thought the words achieved the desired outcome but they did no

Question 14

re: construing a will

to what extent can a will be rectified?

Answer 14

• A will can only be rectified to the extent of T’s intentions. It cannot be rectified to include something T never thought about.

Question 15

re: will property

what is the rule?

Answer 15

the will speaks from the date of death
o In other words, you are looking the property they own at the time of death, not when the will was made.

Question 16

re: will property

what is the exception to the general rule?

give examples

Answer 16

if there are words as evidence to the contrary in the will, i.e.:
o Words suggesting the present i.e. ‘the house I own now’  execution
o ‘my’ when referring to a specific asset  execution
o ‘my’ when referring to a generic asset i.e. ‘my collection of cars’  death

Question 17

re: beneficiaries

when do these provisions apply?

Answer 17

• This only applies where Bs are described, rather than specifically named

Question 18

re: beneficiaries

what is the rule?

Answer 18

The will speaks from the date of execution, unless there is evidence to the contrary in the will

i.e. the will is to be distributed in accordance with those who satisfied the description at the time the will was made, not death.

Question 19

re: beneficiaries

what is the position regarding descriptions of families i.e. ‘my children’?

Answer 19

Descriptions of family (i.e. ‘my children’) will be taken as blood relations unless the will suggests otherwise

Question 20

re: beneficiaries

what is the position regarding adopted children?

Answer 20

o Adopted children are treated as the child of their adoptive parents, not their natural parents (unless they acquire an interest prior to adoption), unless the will suggests otherwise

Question 21

re: beneficiaries

explain the position with descriptions as husband/wife/civl partner

Answer 21

• The terms ‘husband/wife’ and civil partner are not synonymous
  o i.e. if a gift is left to a ‘wife’, but they are CPs it will fail

Question 22

re: gender recognition

when do these provisions apply?

Answer 22

• This applies where Bs are not named and the person has obtained a full gender recognition certificate (GRC)

Question 23

re: gender recognition

what is the position if the will was made before 4 April 2005?

Answer 23

in effect, the GRC is ignored. The property passes to Bs in accordance with their gender at the time the will was executed.

Question 24

re: gender recognition

what is the position if the will was made after 4 April 2005?

Answer 24

property passes to Bs in accordance with their GRC at the date of T’s death.

Question 25

re: gender recognition when can someone apply to the High Court?

Answer 25

* Where the will is made on or after 4 April 2005 and a person is no longer due to inherit because of their GRC, they can make apply to the High Court

Question 26

re: gender recognition what power does the High Court have?

Answer 26

The court has wide direction to make an order where it is just to do so, i.e.: lump sum payment, transfer of property

Question 27

re: gender recognition what are PRs duties in this regard?

Answer 27

* PRs do not have a duty to enquire into whether a GRC has been issued or revoked and they are not liable to any person if the PRs did not make such enquiries (so long as they didn’t know about the status of the GRC)

Question 28

re: gender recognition what other equitable options are available in this instance?

Answer 28

* A person can still follow property into the hands of another unless it was purchased for value in good faith and without notice

Question 29

re: failure of gifts what happens if a gift fails?

Answer 29

it becomes part of residuary estate

Question 30

re: failure of gifts what happens if a residuary gift fails?

Answer 30

partial intestacy and passes under intestacy rules

Question 31

re: failure of gifts why might a gift fail?

Answer 31

1. uncertainty 2. B was a witness 3. divorce or dissolution 4. ademption 5. doctrine of lapse 6. disclaimer 7. forfeiture rule

Question 32

re: failure of gifts explain uncertainty

Answer 32

* If the subject matter or recipient of the gift is not clear, the courts will look at the wording of the will to discern T’s intention and use rectification, if possible. * If this cannot be determined, the gift will fail for uncertainty.

Question 33

re: failure of gifts what is the exception to the uncertainty rule?

Answer 33

gifts to charity which don’t sufficiently identify the charity will not fail if it is exclusively for charitable purposes. The court will elect the charity.

Question 34

re: failure of gifts explain Bs as W to a will

Answer 34

if B or their spouse/CP witnesses a will, any gift to B will fail This only applies to Bs and spouse/CPs married at the time of execution

Question 35

re: failure of gifts when will a gift to B not fail where they are a W

Answer 35

the gift will not fail if: o The will was validly executed without B’s/their spouse/CPs signature i.e. if there are 3 witnesses to the will and 1 was a B. o There is a codicil which confirms the original will was not witnesses by B or their spouse/CP

Question 36

re: failure of gifts explain divorce / dissolution

Answer 36

* Where a gift is made to a spouse/CP and the marriage/CP is later dissolved, annulled or declared void, the gift will fail

Question 37

re: failure of gifts explain ademption

Answer 37

* a specific legacy fails (i.e. adeems) if T no longer owns it at death i.e. the asset may have been sold, given away or destroyed

Question 38

re: failure of gifts what are the two common scenarios in relation to ademption?

Answer 38

1. Retained Asset Changed in Nature 2. Disposal and Acquire of New Property

Question 39

re: failure of gifts explain 'retained asset changed in nature' and when a gift will be adeemed give an example

Answer 39

* Change in name or form = no ademption * Change in substance = ademption i.e. gift of shares. The company has been taken over since execution of the will. The legacy is not adeemed.

Question 40

re: failure of gifts explain 'disposal and acquire of new property' and when a gift will be adeemed

Answer 40

i.e. T no longer owns the gift but has acquired a different item that matches the description * Specific asset (i.e. my car) > presumed T intended to gift the asset they owned at execution. The gift is adeemed, unless there is contrary intention. o A codicil republishes a will, so if a codicil is executed after the property is disposed of & replaced, B will inherit the replacement asset * If the legacy is capable of increase/decrease (i.e. my shares, my jewellery) > assumed T intended to gift the asset(s) they owned at death

Question 41

re: failure of gifts what is the doctrine of lapse?

Answer 41

a gift will fail if B predeceases T, unless there is contrary intention i.e. the will is clear the property is to pass to the holder of a position / office at the date of death

Question 42

re: failure of gifts what is the exception to the doctrine of lapse? how is the property distributed?

Answer 42

If T makes a gift to an issue but they pre-deceases T, the gift doesn’t lapse but passes to the deceased B’s surviving issue, unless there is contrary intention (this is substitution under s33 Wills Act 1837) Per stirpes distribution applies

Question 43

re: failure of gifts what type of gift will a lapsed gift become?

Answer 43

Lapsed gifts form part of the residue estate unless there is a substitutional gift i.e. provision for a gift to pass to someone else if B cannot inherit

Question 44

re: failure of gifts what happens if the residue gift lapses?

Answer 44

* Lapsed residue gifts pass under IR unless there is a substitutional gift

Question 45

re: failure of gifts what effect does a codicil have? Give an example

Answer 45

If a codicil is made, this republishes the will and so the situation at the date of execution of the codicil will apply example > a gift is made to ‘my eldest son’. If they die, the gift does not pass to the eldest surviving son. It is the eldest son at execution. If a codicil is made, it will be the oldest son at the date of execution of the codicil.

Question 46

re: failure of gifts what happens if it cannot be determine whether T or B died first?

Answer 46

If it cannot be ascertained whether T or B died first, it is presumed the oldest died first (s184) NB: if T’s will contained an survivorship clause, B will not inherit

Question 47

re: failure of gifts what is the position regarding lapse and gifts to joint tenants? when will this not apply? give an example

Answer 47

Gifts to joint tenants will not lapse unless all the JTs pre-decease T o There can be more than 2 JTs and they can be named or a class of Bs o i.e. ‘to my nieces jointly’  if one dies, the gift goes to the remaining If there are words of severance, this does not apply i.e. ‘everything to A & B in equal shares’. If one dies, the remaining will not take D’s share.

Question 48

re: failure of gifts explain disclaimer

Answer 48

* B can disclaim a gift they do not want to inherit * B’s issue can be substituted if they disclaim * If there is no substitution, the gift will fall into the residue * If the residue is disclaimed, it will pass under IR

Question 49

re: failure of gifts when does B lose the ability to disclaim?

Answer 49

* Once B has accepted any benefit of the gift, they cannot disclaim

Question 50

re: failure of gifts explain the forfeiture rule

Answer 50

if B has unlawfully killed T, they will automatically forfeit their entitlement this does not apply where B was insane

Question 51

re: failure of gifts what is included in the definition of 'unlawful killing'?

Answer 51

o Unlawful killing inc. murder, manslaughter, aiding and abetting suicide and death by dangerous driving

Question 52

re: failure of gifts what does the forfeiture rule apply to?

Answer 52

* This rule applies to all entitlement i.e. survivorship, under a will or IR

Question 53

re: failure of gifts what is the exception to the forfeiture rule?

Answer 53

Except in relation to murder, the court can modify the effect of the forfeiture rule in anyway (inc. complete relief) if: o It is in the interests of justice, having regard to the conduct of D, B and all the circumstances; and o B has applied within 3 months of conviction (strict timescale – no ext.)

Question 54

re: revocation what is revocation?

Answer 54

the formal act of cancelling or withdrawing a whole or part of a will A will is always revocable, even if T claims it is not (NB: see will contracts and mutual wills)

Question 55

re: revocation when and how can a will be revoked?

Answer 55

T can revoke their will at any time provided they have capacity by: 1. later will or codicil 2. destruction 3. marriage/CP

Question 56

re: revocation explain revocation by later will or codicil

Answer 56

A later will/codicil/written declaration executed in the same way as a will can revoke an earlier will in whole or part by: o A revocation clause (no specific wording is required); or o Implication  the most recent will will revoke the earlier will to the extent they are inconsistent

Question 57

re: revocation how can a later will / codicil revoke a will?

Answer 57

o A revocation clause (no specific wording is required); or o Implication  the most recent will will revoke the earlier will to the extent they are inconsistent

Question 58

re: revocation what is the doctrine of conditional revocation? give an example

Answer 58

if the revocation was subject to a condition that was not satisfied, the revocation will be ineffective i.e. T revoked their will by destruction on the condition of a future event taking place (i.e. creating a new will). If this did not happen, the court may apply this doctrine and to find that the original will was not revoked.

Question 59

re: revocation explain revocation by destruction

Answer 59

* A will can be revoked by T, or another person under T’s direction in T’s presence, destroying the will with the intention of revoking it

Question 60

re: revocation - by destruction what is meant by 'destroy'

Answer 60

must be physical destruction. Symbolic destruction i.e. crossing out or writing ‘revoked’ is not sufficient.

Question 61

re: revocation - by destruction what happens if only part of the will is destroyed?

Answer 61

If only part of the will is destroyed: o A vital part i.e. the signature  may revoke the whole will o A less substantial part may revoke that part of the will  the test is whether the remainder of the will is intelligible and can still operate.

Question 62

re: revocation - by destruction explain 'intention'

Answer 62

a will destroyed by accident is not revoked.

Question 63

re: revocation - destruction what will the courts do when a will is destroyed but not revoked?

Answer 63

Where a will is destroyed, but not revoked, the court will look at evidence to establish its contents i.e. a copy or oral evidence The court may try to use the doctrine of conditional revocation to save a will o i.e. T revoked their will by destruction on the condition of a future event taking place (i.e. creating a new will). If this did not happen, the court may apply this doctrine and to find that the original will was not revoked.

Question 64

re: revocation - marriage what is the general rule?

Answer 64

if T marries or forms a CP, the will is automatically revoked

Question 65

re: revocation - marriage what is the exception?

Answer 65

the will is not be automatically revoked on marriage where: 1. T makes the will prior to and in expectation of a forthcoming marriage to a particular person (i.e. general marriage is not sufficient); and 2. T does not intend for the will to be revoked (i.e. the will must state this)

Question 66

re: revocation - marriage what happens if the marriage doesn't go ahead?

Answer 66

will is still effective (unless stated otherwise)

Question 67

re: revocation - marriage what happens if T marries someone who isn't the 'particular person'?

Answer 67

the will is revoked

Question 68

re: revocation - marriage what happens if a CP is converted into a marriage?

Answer 68

* If a CP is converted to a marriage, this does not revoke the will

Question 69

re: revocation - marriage what is the effect of divorce/dissolution?

Answer 69

the will is still valid but the following provisions no longer take effect: o Any provision appointing the former partner as an executor or trustee; o Any entitlement to property

Question 70

re: revocation - marriage what is the effect of a marriage being annulled/declared void?

Answer 70

the will is still valid but the following provisions no longer take effect: o Any provision appointing the former partner as an executor or trustee; o Any entitlement to property

Question 71

re: will contract what is this?

Answer 71

* i.e. T promises to leave their estate / a gift to B in exchange for consideration.

Question 72

re: will contract what happens if T tries to revoke this?

Answer 72

If T revokes this, this will amount to a breach of contract and the estate would need to pay B contractual damages

Question 73

re: mutual will what is a mutual will?

Answer 73

i.e. a binding agreement where 2 people make their wills on the same agreed terms which cannot be altered after death A mirror will is not sufficient as a mutual will. There must have been a clear agreement for there to be mutual wills.

Question 74

re: mutual will what is the position of the surviving partner?

Answer 74

* The surviving partner is the absolute owner of the property during their lifetime. Whilst they cannot spend all the assets with the intention of defeating the agreement, if they make bad investments and lose the money the situation is different.

Question 74

re: mutual will what happens if one party tries to amend their will after the other has passed away?

Answer 74

* If one party tries to amend their will after the other has died, the doctrine of mutual wills (DOMW) will impose a constructive trust over the surviving partner’s estate in favour of the original Bs under the mutual will o DOMW doesn’t invalidate the new will, but prevents it from taking effect

Question 74

re: mutual will what effect does the doctrine of mutual wills have?

Answer 74

o DOMW doesn’t invalidate the new will, but prevents it from taking effect

Question 75

re: mutual wills can this be revoked?

Answer 75

* The will can only be revoked if both Ts are alive and agree

Question 76

re: mutual wills what happens if one unilaterally revokes?

Answer 76

o If one T unilaterally revokes, this is a breach of contract. The other T would need to seek damages for loss suffered as a result

Question 77

re: codicils what is this?

Answer 77

* a document which supplements an existing will * Codicils are used to make amendments to or revoke (in part) an existing will

Question 77

re: codicils when should a new will be made rather than a codicil?

Answer 77

o Advisable to make a new will (not codicil) if the changes are substantial

Question 78

re: codicils how are these executed?

Answer 78

* Codicils are executed in the same way as a will

Question 79

re: codicils what effect does a codicil have?

Answer 79

* A codicil has the effect of republishing the existing will, this means the will will take effect at the same time as the codicil

Question 80

re: codicils what is necessary for the codicil to take effect?

Answer 80

o T must have intended to republish the will. There may be an express statement or courts will infer intention from reference to the existing will

Question 81

re: codicils why are these / republished will significant?

Answer 81

in the instances where 'the will speaks from execution'

Question 82

how can a will be resurrected?

Answer 82

* Codicils can also be used to revive a revoked will.

Question 83

when will a resurrected will take effect?

Answer 83

* The will will take effect at the time it is revived

Question 84

where a codicil is resurrecting a will, what must it include?

Answer 84

The codicil must evidence T’s intention to revive the will, i.e.: o Express statement or inclusion of a disposition which means T had no other intention but to revive the will o A mere reference to the existing will is not sufficient

Question 85

re: alterations to a will what is the starting point?

Answer 85

alterations have taken place after execution (rebuttable)

Question 86

re: alterations to a will what is the position where the alteration was made before execution?

Answer 86

valid if there is evidence to support this (i.e. to rebut the above presumption)

Question 87

re: alterations to a will what is the position where the alteration was made after execution?

Answer 87

valid if executed like a will

Question 88

re: alterations to a will what is the position if the alteration is invalid?

Answer 88

* If the alteration is invalid, the original wording stands if it is ‘apparent’ i.e. it can be ascertained using ‘ordinary means’

Question 89

re: alterations to a will give examples in relation to ordinary means

Answer 89

o Permissible  a magnifying glass or holding it up to light o Not permissible  extrinsic evidence (i.e. copy of will, evidence from solicitor), interference with the will (i.e. applying chemicals, x-ray)

Question 90

re: alterations to a will what might the court do if T completely obliterated the original wording when making the amendment? give an example

Answer 90

When making the alteration, if T completely obliterated the original wording, the court may be prepared to apply the conditional revocation rule: o i.e. T only intended to revoke the original words on the condition the substitute words were effective. This has not been satisfied because the substitute wording was unexecuted and thus invalid. This would mean the original words have not been revoked and the court can look at any evidence to determine the original wording. * If T obliterated the original wording and did not write anything, this is simply revocation by destruction. The gift is revoked.