Will construction Flashcards
(28 cards)
When does the will generally speak in relation to property?
The will speaks from the date of the testator’s death unless a contrary intention is shown.
What words can demonstrate a contrary intention in a will?
Words such as ‘my’, ‘now’ or ‘at present’.
Then the will will speak from the date of execution
If a collection is capable of growing, when does the will speak regarding that collection?
The will speaks from the date of death notwithstanding the use of ‘my’.
From when does the will speak to identify the person who should inherit under a clause?
The will is deemed to speak from the date of execution.
What is the class closing rule?
It dictates that the class of beneficiaries will close when the first beneficiary in a class gains a vested interest.
What happens when a codicil is added to a will?
The codicil amends the will under the general rule, and people are identified with reference to the date of the codicil.
What is the general rule regarding legacies and inheritance tax?
Legacies are drafted as free from tax, and the estate bears the burden of such tax.
But the testator can oust this.
Who typically bears the burden of costs related to the delivery of property and its upkeep?
Specific beneficiaries bear the burden of the cost of delivery and expenses incurred since the date of death.
Unless the testator makes specific provisions for this to come out of the residuary.
What is the general rule regarding charges on an asset in a will?
The asset charged bears liability for payment, and the beneficiary inherits property subject to the charge.
Although the testator can change this in the will.
What must be considered regarding the terms of any mortgage protection policy?
The terms of any mortgage protection policy need to be considered.
What does the S21 Administration of Justice Act allow the court to determine?
The court can determine the effect of a will, including the meaning of words within the will and what the testator intended.
When is extrinsic evidence permitted in interpreting a will?
Extrinsic evidence is only permitted if the will or any part of it is meaningless, the language used is ambiguous on its face, or the will is ambiguous in light of surrounding circumstances.
What is the general rule for beneficiaries to take a gift under a will?
A beneficiary must merely survive the testator to take a gift under a will.
What is the Commorientes Rule?
The Commorientes Rule presumes that the eldest person died first when two people die simultaneously.
How are simultaneous deaths treated for IHT purposes?
If the order of death is not known, the two deaths are treated as simultaneous, and property passing from the first to the second is not taxed again in the succession estate.
What do survivorship clauses do?
Survivorship clauses force a beneficiary to survive the testator by a specified period of time.
What are Class Gifts?
Class Gifts determine that each member of the class is entitled to inherit.
When does a class close if the class closing rules apply?
A class closes when any one member of the class first becomes entitled in possession.
What are Vested Interests?
Vested Interests are given outright and absolutely without conditions. If a minor with a vested interest dies before 18, the gift belongs to them and will pass into their estate.
(this is true even though the asset is technically being held on trust for them as they can’t give good receipt)
What occurs if a pecuniary legacy lapses?
If a pecuniary legacy lapses, the money that would have been given ends up in the residuary estate.
What happens if a beneficiary dies before the T?
The gift lapses.
What is the effect of a lapsed gift of the residuary estate?
If a gift of the residuary estate lapses, a full or partial intestacy is created.
What are Substitutional Gifts?
Substitutional Gifts prevent a partial intestacy and can be made in favor of grandchildren/great-grandchildren.
What does s.33 Wills Act 1837 provide regarding substitutional gifts?
It may apply to prevent the gift lapsing if there is a will containing a gift to the testator’s issue, and the intended beneficiary dies before the testator leaving issue of their own who are living at the testator’s death.
This doesn’t necessarily work where the gift is contingent.
