Unit 2: Entitlement, Revocation, and Drafting

Comprehensive practice flashcards reviewing will construction, extrinsic evidence, rectification, failure of gifts, revocation, mutual wills, codicils, alterations, and will drafting rules based on Chapters 2, 3, and 5.

Under the general rules of will construction, what are the two rebuttable presumptions concerning the meaning of words?

Non-technical words receive their ordinary meaning (e.g. "money"), whereas technical words receive their technical legal meaning (e.g. Re Cook, where "personal estate" meant personalty, not realty).

Under section 21 of the Administration of Justice Act 1982 (s 21 AJA 1982), in which three circumstances is extrinsic evidence admissible to interpret a will?

Extrinsic evidence is admissible only when the language of the will is: (1) meaningless, (2) ambiguous on its face, or (3) ambiguous in light of surrounding circumstances.

How was extrinsic evidence applied by the court in Thorn v Dickens?

The testator left a testamentary gift of "all to mother" when his mother was already dead; extrinsic evidence was admitted to establish that he customarily referred to his wife as "mother".

Under section 20 of the Administration of Justice Act 1982 (s 20 AJA 1982), on which two grounds can a court order rectification of a will?

The will must fail to carry out the testator's intentions because of either: (1) a clerical error (e.g. Joshi v Mahida), or (2) a failure to understand instructions (e.g. Sprackling).

What is the statutory rule under section 24 of the Wills Act 1837 (s 24 WA 1837) regarding property passing under a will?

As regards property, the will speaks from the date of death (e.g. "all my estate" covers everything owned at death), unless a contrary intention appears in the wording.

From what date does a will speak regarding the identity of beneficiaries?

As regards people, a will speaks from the date of execution (e.g. "Kate's eldest daughter" refers to whoever satisfied that description when the will was executed).

What is the cut-off date governing whether a person with a full gender recognition certificate is recognized in their acquired gender under a will?

The acquired gender counts only for wills made on or after $4\text{ April } 2005$; it has no effect on gifts in wills executed before that date.

What are the seven grounds on which a testamentary gift can fail?

(1) Uncertainty, (2) Beneficiary witnesses (s 15), (3) Divorce (ss 18A/18C), (4) Ademption, (5) Lapse, (6) Disclaimer, and (7) Forfeiture.

Under section 15 of the Wills Act 1837, what is the effect if a beneficiary or their spouse/civil partner witnesses the execution of a will?

The gift to that beneficiary fails, but the witness remains competent and the will itself remains valid.

Under sections 18A and 18C of the Wills Act 1837, what is the effect of a decree of divorce or annulment on gifts to a former spouse?

The will remains valid, but the former spouse is treated as having died on the date of dissolution or annulment, both as a beneficiary and as an executor or trustee.

What is ademption, and when does it occur?

Ademption occurs when a specific gift fails because the testator no longer owns the asset at death due to it being sold, given away, destroyed, or changed in substance.

What does section 184 of the Law of Property Act 1925 (s 184 LPA 1925) provide when the order of death between two individuals is uncertain?

The elder person is presumed to have died first (as applied in Scarle v Scarle).

What are the conditions and effect of section 33 of the Wills Act 1837 (s 33 WA 1837)?

If a gift is made to the testator's child or remoter issue who predeceases the testator leaving issue who survive the testator, the gift passes automatically to those surviving issue in equal shares per stirpes, unless excluded by a contrary intention.

What is the time limit for making an application for relief under the Forfeiture Act 1982?

The application must be made strictly within $3\text{ months}$ of conviction, with no provision for an extension.

What was the outcome in Morris v Morris (2024) regarding forfeiture?

The husband arranged his wife's assisted death in Switzerland, which constituted aiding and abetting suicide under section 2(1) of the Suicide Act 1961, triggering the forfeiture rule; however, the court granted full relief based on his compassion and motive.

What are the three statutory methods of revoking a will under the Wills Act 1837?

(1) By a later will, codicil, or written declaration executed like a will; (2) By physical destruction with intention to revoke; or (3) By marriage or civil partnership.

Why did the testator's actions in Cheese v Lovejoy fail to revoke the will?

Revocation by destruction under section 20 requires both physical destruction and intention; symbolic acts such as crossing out text and writing "revoked" do not satisfy the requirement of physical destruction.

Under what condition does marriage or civil partnership not automatically revoke a will under sections 18 to 18C of the Wills Act 1837?

When the will is made in expectation of marriage to a particular person, and the will contains an express intention that it should not be revoked by that marriage.

Under the doctrine of mutual wills, when does the constructive trust arise and what is its effect?

The constructive trust arises upon the death of the first testator without having revoked their will; it binds the survivor's estate in equity in favour of the agreed beneficiaries, even if the survivor subsequently executes a new will.

What is the legal presumption regarding alterations found on the face of a will?

Alterations are rebuttably presumed to have been made after the execution of the will, meaning they are invalid unless executed in accordance with section 21.

What standard determines whether an altered or obliterated word in a will remains "apparent"?

Original wording is "apparent" if it is optically legible on the face of the document by ordinary means (such as using a magnifying glass or holding it up to light), excluding the use of extrinsic evidence, chemicals, or X-rays.

What is the maximum number of personal representatives who can take out a grant of probate in respect of the same assets?

A maximum of $4$ personal representatives can take the grant.

Under section 35 of the Administration of Estates Act 1925 (s 35 AEA 1925), who bears the burden of a mortgage on gifted property by default?

The beneficiary who inherits the property takes it subject to the mortgage, unless the will includes contrary wording placing the burden on residue ("free of mortgage").

What is the default rule regarding the payment of Inheritance Tax (IHT) on specific and pecuniary gifts?

IHT on gifts is paid out of the residuary estate by default, unless the will specifically makes the gift "subject to tax".

Why is it preferable to draft a residuary gift to "such of my children as survive me, and if more than one in equal shares" rather than naming children individually in fixed shares?

Naming children individually in fixed shares excludes later-born children and causes the share of a child who predeceases without issue to lapse into partial intestacy; a class gift includes after-born children and avoids lapse unless the entire class predeceases.