Types of Gift in a Will

Question 1

What is a devise ?

Answer 1

gift of land (realty)

Question 2

what is a legacy/bequest

Answer 2

gift of chattels (personalty)

Question 3

What are the 5 types of legacy?

Answer 3

1) Specific
2) General
3) Demonstrative
4) Pecuniary
5)Residuary

Question 4

What is a specific legacy

Answer 4

T specifies particular piece of property he owns e.g. land

common indicator of specific property = use of ‘my’

subject to ademption

Question 5

What is ademption?

Answer 5

A gift will fail if a specific property is not owned by the testator at the date of death, or has substantially changed with no recourse

Question 6

What is a general legacy?

Answer 6

A gift to be provided out of the testator’s estate. Commonly money

may also be gift of other property eg shares in a. company

Question 7

What is a demonstrative legacy?

Answer 7

Testator makes a general gift, but specifies a designated fund out of which the gift is to be provided.

Question 8

Are demonstrative gifts subject to ademption?

Answer 8

No

Question 9

What if there are insufficient funds in the designated account?

Answer 9

the executors must resort to the rest of the estate in order for the gift to be made

Question 10

What is a pecuniary gift ?

Answer 10

a general gift of money unless specified or demonstrative - no specific instruction as to which account the money should be paid from

Question 11

What is a residuary gift ?

Answer 11

the testator’s remaining estate not already disposed of by way of specific, general or demonstrative gift

Question 12

When will shares be held to have adeemed?

Answer 12

when they have changed in substance not form

Question 13

What does it mean for shares to change in substance?

Answer 13

they are no longer in the same company or where company exchanged its debentures with new ones

Question 14

what does it mean for shares to change in form only

Answer 14

where a company went into liquidation. but was amalgamated with a new company, or changed its name and sub-divided its existing shares

Question 15

When will ademption NOT occur ?

Answer 15

1) the court interprets a gift as general or demonstrative rather than specific

2)the subject of the gift was disposed of without authority

3) the property has not changed in substance

4) the testator has drafted a gift so as to avoid ademption

Question 16

What is abatement ?

Answer 16

the order in which assets are applied by the executors toward the payment of the estate’s expenses, debts and liabilities

• General legacies abate before specific legacies
• Demonstrative gifts are not vulnerable to abatement

Question 17

What does the will speaks from the date of death mean?`

Answer 17

a gift of ‘the contents of my house’ will be construed as a gift of the contents as at the date of the testator’s death

So if a specific gift is sold or destroyed, and the proceeds are traced or recovered through insurance the beneficiary is not entitled to those proceeds

Question 18

What is the exception to this rule

Answer 18

If a testator owns a leasehold interest when making a will and later acquires the freehold, the rule does not limit the gift to the leasehold.

Question 19

What is the Simultaneous Death and destruction of property

Answer 19

Where the testator dies and his or her property is destroyed simultaneously. there is a presumption that the property was destroyed before the testator died

Question 20

What is the effect of a beneficiary dying before a testator

Answer 20

The gift fails and falls into the residuary estate

Question 21

What happens if the beneficiary who predeceases the testator is the residuary beneficiary

Answer 21

the residue passes under the intestacy rules

Question 22

What is a class gift and when does it lapse

Answer 22

given to a group of people rather than specific individuals. Will only lapse if all members of the class predecease testator

Question 23

What is the effect of a gift to ‘Y and Z in equal shares’

Answer 23

Y and Z will take as tenants in common. If Y dies before X, the gift to him will lapse and Z will receive only her own share.

This can be prevented by stating that the gift is meant to be taken in equal shares or by the survivor absolutely

Question 24

What is the effect of a gift to two or more beneficiaries as joint tenants ?

Answer 24

the gift will lapse only if all the joint tenants predecease the testator, otherwise the surviving joint tenant will take the whole gift (under right of survivorship)

Question 25

What is the presumption of survivorship in regards to claims in property

Answer 25

- the younger of two people who dies is deemed to have survived the elder the succession purposes (except where will includes a survivorship clause)

Question 26

What is statutory substitution

Answer 26

where there is a gift to the child or issue and the intended beneficiary dies before the testator and the issue of the intended beneficiary are still alive; the gift will not lapse but will pass to surviving issue in equal shares but will pass to surviving issue in equal shares. Section 33 does not apply in the case of gift to anyone other than the testator's direct descendant

Question 27

What is the rule in Lawrence v Tierney ?

Answer 27

where a will contains a gift which appears to be absolute , followed by a direction that it is to be held on trust, the gift is to operate as a trust so long as it is effective but where it is ineffective - it is to revert to an absolute gift, this will take effect to the exclusion of the residuary legatee or next of kin

Question 28

Presumption as to a Gift of Real Property

Answer 28

devise of real estate to any person without words of limitation is construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will

Question 29

What is Donation Mortis Cause ?

Answer 29

- `a gift made in contemplation of the death of the donor

Question 30

What is the doctrine of cy-rpes

Answer 30

allows charitable gifts to be paid to another charity if there is uncertainty regarding the intended charitable beneficiary, or the charity in question no longer exists at the date of the testator's death

Question 31

what is the presumption which applies o gifts on person appointed as executor

Answer 31

Any specific or pecuniary legacy made to a person appointed as an executor is intended to be conditional upon that person acting as such

Question 32

what is the presumption as to effect of gifts to spouses

Answer 32

Where a will gives an absolute gift to a spouse/ civil partner , but the same instrument gives an interest in the property to an issue, there is a rebuttable presumption that the gift to the spouse is absolute notwithstanding the purported gift to the issue