Unit 2 Interpretation, Alteration and Revocation

Question 1

Establishing entitlement - Basic presumptions

Answer 1

Study the wording of the will itself.

When interpreting a will, the task is to discern the testator’s intentions through the language of the will itself.

Court makes 2 assumptions:

(a) Non- technical words bear their ordinary meaning
Given the context of the will as a whole – eg ‘money’ can mean notes and coins, but it can also mean everything an individual owns.

(b) Technical words are given their technical meaning
e.g. word ‘personal’ given its technical meaning of personalty as opposed to realty.

Presumptions may be rebutted if from the will (and any admissible extrinsic evidence) it is clear that the testator was using the word in a different sense.

Question 2

Establishing entitlement - Establishing the testator’s intention

Answer 2

The court will focus on the ordinary meaning of the words but will also take account of context and common sense.

Basic rule is that the court is not prepared to consider other evidence in order to try to establish what the testator intended.

Limited circumstances in where court will look at external/extrinsic evidence as interpretation aids:
(a) in so far as any part of it is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

Question 3

Establishing entitlement - rectification

Answer 3

Court has no power to rewrite the will.
Limited narrow power to correct, or rectify a will.

Where will fails to carry out testators intentions because of:
(a) of a clerical error; or
(b) of a failure to understand his instructions.

Question 4

Establishing entitlement - Property passing under the will

Answer 4

Certain types of property pass independently of the will either because they have their own rules of succession (eg property held as beneficial joint tenants), or because the testator did not own them beneficially at death (eg life assurance policies written in trust).

Basic rule = assets determined according to those in existence at date of death.

Unless contrary intention in will.
If testator uses word ‘my’ possible courts interpret this as meaning gift of ‘my car’ is the car owned at date of the will.

Question 5

Establishing entitlement - Identifying the beneficiaries

Answer 5

Generally will speaks from execution - references to beneficiaries are construed as to people alive at the time of the will’s execution.

Gifts to ‘my children’ etc taken to refer to blood relationships not step children. Includes adopted children.
Don’t have to be married to parent.
Not to sperm donations etc if not legal parent.

The terms ‘husband/ wife’ and ‘civil partner’ are not synonymous. So, a gift to ‘John’s wife’ will fail if John never marries but enters a civil partnership instead.

Question 6

Establishing entitlement - Identifying the beneficiaries - Gender recognition

Answer 6

If have gender recognition certificate after will written doesn’t affect rights under will.

If will written after certificate but not written right gender - application may be made to the High Court where expectations have been defeated.

Trustees and PRs protected from any duty to look into whether certificates when distributing property and being liable for this reason.

Question 7

Failure of gifts - Uncertainty

Answer 7

Not possible from wording to identify subject matter or recipient.
The court will first seek to establish the testator’s intentions and consider its powers of rectification.

Exception: do not sufficiently identity charity, provided gift is exclusively for charitable purposes court can direct which charity is to benefit.

Question 8

Failure of gifts - Beneficiary witnesses will

Answer 8

If a beneficiary, or their spouse or civil partner, acts as a witness, the gift to the beneficiary fails.
But will still validly executed.

‘Spouse’ means the person to whom the beneficiary was married at the time that the will was executed.

If there are three witnesses to the will, one of whom is a beneficiary, the gift to that beneficiary is effective because the will is still validly executed even if the beneficiary’s signature is ignored.

Gift will not fail if there is a codicil which confirms the original will and which is not witnessed by the beneficiary (or spouse/ civil partner).

Question 9

Failure of gifts - Divorce or dissolution

Answer 9

If divorce any property passing to former spouse/civil partner passes as if they have died.

Question 10

Failure of gifts - Ademption

Answer 10

For subject matter will speaks from death apart from - specific legacy (ie a gift of a particular item or group of items of property) will fail if the testator no longer owns that property at death. The gift is said to be ‘adeemed’.

If asset changed in nature - question is whether it is substantially the same, having merely changed in name or form. If change in substance = adeemed.

My car, car has changed = adeemed.

If the property given is capable of increase or decrease (eg, ‘my shares’, ‘my jewellery’), the testator will normally be taken to have made a gift of any items satisfying the description at death.

Codicil – supplemental to a will. A way to minorly amend it. Must be executed in the same way as a will. My watch the watch had at codicil.

Question 11

Lapse

Answer 11

A gift in a will fails or ‘lapses’ if the beneficiary dies before the testator.
Goes to residue unless will provided for lapse.

If can’t determine who died first, act as if oldest died first.

Often have survivorship classes - gifts conditional on survival for an amount of time, normally 28 days.

Question 12

Lapse - gifts to more than one person

Answer 12

If gift to 2 or more people ‘jointly’ if A dies whole gift passes to B.

If it says ‘in equal shares’ B just takes their share, As share lapsed and passes under intestacy rules.

If the gift is a class gift (eg ‘to my nieces and nephews equally if more than one’), there is no lapse unless all the members of the class predecease the testator.

Question 13

Lapse - Section 33 Wills Act 1837

Answer 13

Where a will contains a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator, leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue.

Section 33 does not apply if the will shows a contrary intention e.g. express substitution clause.

Question 14

Disclaimer

Answer 14

A beneficiary can disclaim the gift, which will then fall into residue or, in the case of disclaimer of a gift of residue, pass on intestacy.

Treated as having predeceased the testator, which will allow the beneficiary’s issue to replace them under s 33 Wills Act 1837.

However, a beneficiary who has received a benefit from a gift (eg a payment of income) is taken to have accepted the gift and may no longer disclaim.

Question 15

Forfeiture

Answer 15

A person should not benefit from the estate of a person they have unlawfully killed.

Does not apply where the killer was insane.

Unless contrary intention in the will, a person who forfeits is to be treated as having predeceased the testator - s33 substitution applies.

Other than for murder courts can modify effect of forfeiture rule in any way including complete relief.
Apply within 3 months of conviction no discretion to extend.

Question 16

Revocation

Answer 16

Formal act of cancelling or withdrawing a will.
Can be whole or part.

Testator needs capacity to do this.

Question 17

Revocation - By a later will or codicil

Answer 17

Whole or part.

If a will does not contain an express revocation clause, it operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent

Court may construe a testator’s intention to revoke an earlier will by an express revocation clause as being conditional upon a particular event (eg the effectiveness of the new will) = doctrine of ‘conditional revocation’ or the doctrine of ‘dependent relative revocation’

Question 18

Revocation - By destruction

Answer 18

Physical destruction is required: symbolic destruction (eg simply crossing out wording or writing ‘revoked’ across the will) is not sufficient.

Although if a vital part (eg the signature) is destroyed, this partial destruction may be held to revoke the entire will.

If part destroyed less substantial often only that part is revoked - test is whether the remainder of the will is intelligible and can still operate in the absence of the destroyed part.

Act of destruction must be carried out with the intention to revoke.

Where no intention e.g. destroyed by accident, court look at other evidence e.g. ordinary or oral evidence from those that drafted.

Destruction can be carried out by someone else in testators presence and at their direction.

Doctrine of dependent relative revocation = court save a will, on the basis that the testator’s intention to revoke their will by destruction was conditional upon some future event (eg upon the later execution of a new will). If that event did not in fact take place.

Question 19

Revocation - By marriage or formation of a civil partnership

Answer 19

If the testator marries or forms a civil partnership after executing a will, the will is revoked, automatic.

Does not apply where:
- The testator must intend that the will is not to be revoked by the marriage.
AND
The expectation must be of a forthcoming marriage to a particular person

If will then later divorced:
(a) provisions of the will appointing the former spouse or civil partner as executor or trustee take effect as if the former spouse or civil partner had died on the date on which the marriage or civil partnership is dissolved or annulled; and
(b) anything given to the former spouse or civil partner passes as if the former spouse or civil partner had died on that date.

Question 20

Mutual wills

Answer 20

An agreement not to revoke a gift in the will does not stop principle of revocation.
if amounts to contract could get damages.

Mutual wills = two people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.
Equitable doctrine.
It imposes a constructive trust over survivors estate in favour of deceaseds beneficiary.
Doesn’t invalidate new will but frustrate it.

Must be an agreement.

Possible for both testators to revoke their mutual wills as a joint decision.

Question 21

Codicils

Answer 21

= document, executed in the same way as a will, which supplements an existing will.

A republished will is deemed to have been made at the time of republication.

Can be used to revive a will which has previously been revoked.

Question 22

Alterations

Answer 22

If the alterations were made before the will was executed they are valid provided that the testator intended the alterations to form part of the will.

Any alterations are presumed to have been made after the will was executed unless the contrary can be proved.

Alterations made after the will was executed will be valid if those alterations were themselves executed like a will - initials and witnesses is fine.

Destroy words add substitute words - court may find only intended to revoke words on condition substitute words effective.

Question 23

Will drafting - Appointments

Answer 23

Sometimes sensible to create an express trust of the estate - should appoint persons to be trustee.
Sensible to appoint at least two so that they can give a good receipt for the proceeds of sale of any land held in the trust.

Executors:
- No max number but max of 4 can apply for grant of probate.
Min is 1.

Question 24

Will drafting - Appointments - Choice of executor

Answer 24

May appoint any combination of:
* individuals who are not professionals (eg family or friends);
* solicitors or other professionals (as individuals or as a firm);
* banks or other trust corporations.

Question 25

Will drafting - Appointments - Charging provisions

Answer 25

An executor or trustee is a fiduciary and is unable to profit from their position, unless authorised. They can recover their out- of- pocket expenses from the estate or trust fund (eg travelling expenses for attending a meeting) but not remuneration for their time and skill.

Payment for reasonable renumeration allowed for under statute:
* a trust corporation; or
* a trustee ‘acting in a professional capacity’ (includes solicitors).
A sole executor/trustee cannot get renumeration as need consent of co-executors/trustees.

Can put an express power/charging clause in will so don’t have to use statute.

Question 26

Non- residuary gifts

Answer 26

Pecuniary legacies = gift of money.

Specific legacies = gifts of specific assets

Question 27

Non- residuary gifts - The beneficiary

Answer 27

Accurately stating the name and address is important, and including the relationship to the testator will also help.

If minors/young, vested or contingent gift?
Vested = no conditions. E.g. gift to son if under 18 will be held on trust for him, if 18 gets gift.
Contingent = conditions e.g. reach a certain age. Held on trust in meantime. If die before reach age estate not entitled to gift instead pass to the person(s) expressed to be entitled in default or, if none, with the residue of his father’s estate.

Question 28

Non- residuary gifts - The beneficiary- Gifts to charities

Answer 28

Some charities are run as unincorporated associations (no separate legal personality) - all members will need to sign receipt of gift.
Unless clause to authorise executors to accept receipt of a person who appears to be an authorised officer.

In case charity dissolves etc before date of death - state that the gift is to the body ‘for its general charitable purposes’.

Question 29

Burden of inheritance tax, costs and charges

Answer 29

• Inheritance tax (‘IHT’)
  The default position is that the IHT on the individual legacies is paid out of the residuary estate.
  Can displace the general rule by exhibiting a contrary intention.
• Costs
  There may be costs associated with the packing or transport of a specific gift. Unless the will provides otherwise, the beneficiary will bear these costs.
• Charges
  Mortgage debt falls on the beneficiary who receives the charged property unless the will contains a contrary direction - ‘free of mortgage’.

Question 30

Gift of the residue

Answer 30

There should be an express direction for the payment of all debts, expenses and legacies to be made from the residue before it is distributed to the beneficiaries. If not statutory order.

Not unusual to create trust of residue. E.g.
* contingent trusts
* discretionary trusts (where the trustees select who, from a class of beneficiaries, is to benefit, and how much each will receive
* trusts with successive interests, such as a trust to pay the income to the testator’s or testatrix’s spouse for life, remainder to the children

Question 31

Gift of the residue - Avoiding partial intestacy

Answer 31

Preferable to include substitutional gifts to cover the possibility of the primary gift failing.

It is also worth considering a ‘longstop’ beneficiary to inherit if all the intended arrangements fail - often a charity because there is little possibility of such a gift failing.

Question 32

Survivorship clauses

Answer 32

To avoid situation where beneficiary dies at same time and the burden and expense of the property being part of the administration of two different estates