Will Drafting - Construction Flashcards
(18 cards)
When does a will ‘speak’ in respect of identifying the subject matter of gifts?
a will speaks from the date of death unless a contrary intention appears.
What phrases show a ‘contrary intention’ to s.24 Wills Act?
Words like “my”, “now”, or “at present” may refer to assets owned at the time of executing the will—not at death.
What is the consequence of referring to “my car” in a will if the car is later sold?
The gift adeems (fails), and the beneficiary receives nothing unless a substitution is provided.
How are collections (e.g. ‘my stamp collection’) treated in a will?
They are construed to include items held at the date of death, even if the word “my” is used.
Does this rule also apply to shareholdings?
Yes. A gift of ‘my Tesco shares’ includes the number of shares held at death.
From what date are people identified for class gifts (e.g. ‘my grandchildren’)?
From the date of execution, unless a contrary intention is shown.
What if the testator wants to include grandchildren born after their death?
The clause must state this expressly to avoid class closing rules.
What is the effect of a codicil on identifying beneficiaries?
The will is republished, and persons are identified by reference to the date of the codicil.
What is the default rule for inheritance tax on specific legacies?
They are presumed free of IHT; the tax is paid from the residue unless otherwise stated.
Who pays expenses and transfer costs for specific gifts by default?
The beneficiary, unless the will states the gift is “free of expenses and transfer costs.”
What is the default rule on liabilities attached to gifted property (e.g. mortgages)?
the beneficiary takes the gift subject to the charge.
Can the testator override default rule on liabilities attached to gifted property?
Yes, by expressly stating the debt is to be paid from the estate.
Does a general direction to pay debts from residue override default rule on liabilities attached to gifted property?
No. An express provision is needed to relieve a gifted asset from a charge.
In what three situations can extrinsic evidence be admitted for will interpretation?
(a) Will or part of it is meaningless
(b) Language is ambiguous on its face
(c) Ambiguity arises from surrounding circumstances
Can extrinsic evidence be used to contradict the language of the will?
No. It is only used to clarify meaning, not to alter or override it.
What is the commorientes rule?
If the order of death is uncertain, the older person is presumed to have died first.
What is the IHT rule for simultaneous deaths under s.4 Inheritance Tax Act?
Each estate is taxed separately. Property that passes between spouses is not taxed again in the second estate.
What are the class closing rules?
A class closes when the first member becomes entitled to possession or enjoyment of the gift, unless the will expresses a different intention.
