Will Drafting - Dispositive Clauses

Question 1

What do the terms ‘legacy’ and ‘devise’ traditionally refer to?

Answer 1

‘Legacy’ refers to personal property (chattels or money), and ‘devise’ refers to real property (land).

Question 2

What is a specific gift in a will?

Answer 2

A gift of a clearly identified item owned by the testator at death, distinguished from other similar items.

Question 3

What happens if the testator no longer owns a specific gift at death?

Answer 3

The gift adeems (fails), and the beneficiary receives nothing.

Question 4

How can ademption of a specific gift be avoided?

Answer 4

By including a substitution clause, such as a replacement item or a cash equivalent.

Question 5

What is a gift of a collection?

Answer 5

A gift of a group of items (e.g. “all my household furniture”) which must be clearly defined to avoid uncertainty.

Question 6

What drafting safeguards are used when gifting collections?

Answer 6

Include a dispute resolution mechanism, timeframe (e.g. 6 months), and fallback authority for division (e.g. executors).

Question 7

What must be included when gifting land?

Answer 7

Full address and title number, and consideration of survivorship rules, third-party interests, or existing trusts.

Question 8

What is a general legacy?

Answer 8

A gift of property not distinguished from other similar items (e.g. “a Hasselblad camera”).

Question 9

What happens if the general gift is not in the estate at death?

Answer 9

The PRs must acquire it from estate funds unless otherwise directed.

Question 11

What happens if the fund for a demonstrative gift is insufficient?

Answer 11

The beneficiary receives the remaining fund and the balance is paid from general estate funds.

Question 12

What is a residuary gift?

Answer 12

A gift of all property not otherwise disposed of by the will, known as the ‘residuary estate’.

Question 13

What happens if a residuary gift fails and no substitution is provided?

Answer 13

It results in a partial intestacy.

Question 14

How can partial intestacy be avoided in residuary gifts?

Answer 14

• Use “such of them as survive me” wording
• Add substitution clauses
• Include an ultimate gift over clause (e.g. to charity)

Question 15

What is an ultimate gift over clause (aka disaster clause)?

Answer 15

A clause stating who should inherit if all other gifts fail, often a charity.