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interpreting the will Flashcards

(63 cards)

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1
Q

property that does not pass through a will

A

survivorship property
pension benefit
insurance written in trust
trust property - dissolve according to terms of trust

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2
Q

testator and testatrix

A

testator - male

testatrix - female

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3
Q

executor or administrator

A

executor - will

administrator - no will

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4
Q

the order in which property should be dealt with

A

property passing outside of will
property passing inside of will
intestate property

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5
Q

legacies

A

gifts of personalty

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6
Q

devise

A

gift of reality

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7
Q

specific gift

A

gift of a specific item - if it is substantially different it will fail

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8
Q

general gift

A

item corresponding to description - if no longer has item use funds from estate to get it

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9
Q

demonstrative gift

A

general in nature but paid out of a specific funds - if fund no longer exists then pay out of rest of estate

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10
Q

pecuniary gift

A

gift of money

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11
Q

residue gift

A

everything left over

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12
Q

where does the property go when a gift fails

A

the residue

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13
Q

what happens to a will following divorce

A

gifts fail - not just separation though, must be divorce

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14
Q

how to determine which assets are referred to

A

assets that exist at time of death

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15
Q

how to determine which Bs are referred to

A

Bs existing at time of writing, not at time of death

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16
Q

how to interpret will

A

read as if it was written just before death

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17
Q

can the court rectify a will

A

only if admin error or failure to understand Ts instructions

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18
Q

how to interpret words in will

A

ordinary meaning
Ts intention is key
read in contect
if technical words give them their technical meaning

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19
Q

when will court look at evidence to determine meaning

A

part of will is meaningless
language is ambiguous
evidence other than intention shows language is ambiguous in light of context
evidence is only an aid - cannot re-write the will

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20
Q

what if words are included in will by mistake

A

court may allow it to be admitted to probate with those words admitted

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21
Q

reference to ‘my children’

A

defined by blood, includes adoption and illegitimate children

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22
Q

meaning of issue

A

direct descendants of any generation

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23
Q

what if a specific gift has changed

A

is it substantially the same? if it is they can still have it. if it has substantially changed then in fails.

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24
Q

ademption

A

failure of gift

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25
impact of gender reassignment
if will was made before GR then GR is irrelevant if will was made after GR then GR is relevant if gift is different due to reassignment can apply to high court for order PRs don't need to see GR certificate can trace into the hands of someone who received it unless bona fide purchaser
26
does a will need to be dated
not essential but advised
27
are alterations valid
if made before execution - valid (assume made after execution) if made after execution - valid if initials of T and witness if not initials then original will valid if words are apparent if words not apparent it is invalid but rest of words that can be read are valid unless conditional revocation rule applies
28
what is a codicil
supplement to make a small change to a will
29
how to read will with codicil
as if whole will was executed at date of codicil
30
how to ensure a codicil is valid
execute it like a will
31
can a codicil be used to revive an old will
yes but intention to revive must be explicit (this is inferred by existence of codicil)
32
what if B dies before T
the gift falls to the residue (or if residue then intestate) unless substitutional B in will or if s33 applies
33
s33 - substitutional B
if gift to Ts issue fails because B died before T then B's issue can inherit equally. implied substitutional gift - overrulled by explicit substitutional gift in will
34
can B refuse to take a gift
yes can disclaim so falls to residue unless already recieved a benefit S33 will apply as if B was dead
35
when does a gift in a will vest
on Ts death unless the will says otherwise
36
what if there is a gift to several Bs or a class of Bs, one of which dies before T
the gift doesn't fail until all Bs have died so remaining Bs take all of the gift unless there are severance words then remaining Bs only take their share and the share of dead B goes to residue
37
what if the order of the death of T and B cannot be ascertained
assume older died first If T dies first it goes to bs estate if B dies first gift fails and goes to residue
38
what if B killed T
then cannot benefit from gift. 3 months from conviction to appeal and will be allowed gift if justice demands it
39
does s33 apply when B forefits gift
forefit - B killed T | B treated as dying first so s33 applies
40
what is revocation
withdrawing or cancelling a will
41
can revocation be at any time
yes - just need capacity
42
methods of revoking a will
new will marriage / divorce destruction codicil
43
does a new will always revoke an old will
yes to the extent they are different it is implied so not essential to have a revocation clause
44
can revocation be conditional
yes by new will or destruction | revocation is invalid if condition not met and original will valid instead
45
how to revoke a will by destruction
physical destruction is needed. symbolic destruction / crossing it out is not enough need intention to revoke - if destruction is an accident it is not revoked destruction must be by T or someone in their presence at their direction
46
what if the will is destroyed but not revoked
the court looks at all the evidence to establish content of will
47
does marriage always revoke a will
yes unless will states that it doesn't | but must refer to marriage with specific person not marriage in general
48
if will anticipates marriage but marriage doesn't happen is the will valid
yes unless it states it is conditional on the marriage
49
does changing CP into marriage revoke a will
no
50
how does divorce impact a will
treated as if spouse died before T
51
can T agree to never revoke their will
no - a will can always be revoked. even if they promise not to revoke it this is not binding (but might breach contract) unless mutual wills
52
how are mutual wills enforced
when first T dies there is a CT over the property of second T - second T can still deal with property (so might have nothing left on death) but cannot intend to disrupt CT
53
act which allows family and dependants to challenge distribution
inheritance (family and dependants)act 1975
54
when would you use the inheritance (family and dependants)act 1975
when you haven't received anything or you are unhappy with the amount you have received
55
test to be awarded something under inheritance (family and dependants)act 1975
objective - T did not make reasonable provisions for you
56
who can claim under inheritance (family and dependants)act 1975
spouse (or former if not remarried or barred during divorce) child - any age person treated as child maintained by T cohabitee for 2 years immediately before death
57
who is a cohabitee before death
temp absence ok but must be commitment or permenance
58
who is a person maintained by T
must be settled arrangements substantial contribution of money or money's worth towards reasonable requirements not for consideration doesn't have to be immediately before death temp break is ok
59
how long do you have to apply under inheritance (family and dependants)act 1975
within 6 months of the grant
60
who pays a claim under inheritance (family and dependants)act 1975
court decides which B takes the loss if nothing left in estate because PR distributed within 6 months then PR is liable to pay. if PR waited 6 months to distribute then not liable
61
what property can be used to satisfy a claim under inheritance (family and dependants)act 1975
all property passing through the will and any property passing through survivorship
62
what types of orders can be made under inheritance (family and dependants)act 1975
lump sum, periodic payments, specific property transfer
63
does it need to be for maintenance - inheritance (family and dependants)act 1975
not if it is spouse but yes if it is for anyone else then must be to maintain standard of living appropriate to them

Wills (5 decks)

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