SQE 1 - Wills and Administration (Interpretation of wills, alterations and amendments)

What is a legacy?

A gift of personalty in a will is called a 'legacy'.

Personalty' is all property which is not land: it therefore includes all physical objects (chattels), as well as money, interests under a trust and any debts owed by other people to the deceased.

What is a devise?

A gift of land is called a 'devise'.

All legacies or devises can be…

• specific

• general

• residuary

What are specific legacies?

The essence of a specific legacy is an item (or a collection of items) that is separated off by the testator from the rest of their personal belongings to be given to a particular person. For example, 'I give my collection of J. R. R. Tolkien first editions to my nephew Caspar' is a specific gift, as is 'I give my VW Golf motor car to my niece Gemma'.

What are general legacies?

The essential difference between specific and general legacies is that specific legacies have to be made of or from a specific item of property, but general legacies can be made from any available part of the estate. So, in the example above, the specific legacy can only be made by the executors taking the books owned by the testator and giving them to Caspar. A general legacy of a sum of money, for example 'I give £1,000 to my nephew Ade', can be paid by the executors from any available money that is in the estate and not necessarily from a specific source.

What is the main difference between how specific and general legacy is expressed in a will?

A specific legacy will generally, though not always, contain the word 'my', but a general legacy will not. So, for example, the gift 'I give a first edition of The Hobbit to my niece Bella' would normally be a general legacy, and the obligation on the executors would be to purchase a copy of the book for Bella using estate funds and give it to her.

Can a gift be both specific and general?

A gift cannot be both specific and general; it must be one or the other.

What are pecuniary legacies?

These are legacies of money. Pecuniary legacies can be specific: 'The sum of £200 in cash which is kept in the biscuit tin in the kitchen'; or general: 'The sum of £200. They include straightforward gifts of specific sums, for example, '£2,000 to each of my nephews and nieces', but they also include annuities, which are regular payments made out of the estate to a specific person.

Pecuniary legacies can also be demonstrative.

What are demonstrative legacies?

Demonstrative legacies are almost always pecuniary. A demonstrative legacy is a legacy which the will directs should be paid primarily out of a particular fund, for example, 'I give my cousin Sharif the sum of £3,000 from my savings account with the Coffers Bank'.

What if, at the time the testator dies, there is less than £3,000 in the testator's Coffers Bank savings account?

The principle of a demonstrative legacy is that it is paid primarily, though not necessarily, out of the named fund. This means that if there is less than £3,000 in the account at the time of the testator's death, then the executors can make up the shortfall from any other available funds in the estate.

Can legacies fall into more than one category?

You will have seen that legacies often fall into more than one category. They can be both pecuniary and demonstrative (for example), or both pecuniary and general.

What are residuary legacies?

The residue of an estate is what is left after any debts or liabilities of the estate, and any specific, general or demonstrative gifts (be they legacies or devises), have been paid out. If we think back to the image of the testator's belongings spread out in front of them, it is what remains after the specific, general and demonstrative items have been removed.

Why is it important for well-drafted wills to contain a clause disposing of the residue of the estate?

In fact, in most cases, the residue will form by far the most valuable part of the estate. Whether the residue is large or small, all well-drafted wills contain a clause disposing of the residue of the estate.

If this is not done, there is a strong risk that there will be property left over after making the other gifts that the executors do not know what to do with: in other words, there would be a partial intestacy, which should be avoided if at all possible.

What is an example of devises?

'I give my property 24 Acacia Avenue'; or general ones: 'I give all my land'. It is also possible, and common, to make a residuary devise by placing into residue 'the rest of my land not otherwise disposed of in this will'. As pecuniary gifts can only be money, a devise cannot be pecuniary.

Is it common for land to be both gifts and held on trust?

Yes, land can often be given to someone to hold for the benefit of another person: that is, it is handed over as trust property.

What are the scenarios where a testamentary gift may fail?

A gift might fail in the following circumstances:

• Disclaimer

• Ademption

• Lapse

• Witnessing of a will by a beneficiary

• Forfeiture by reason of unlawful killing

What is disclaimer?

- Testamentary gift failure

Not all testamentary gifts come without strings or are unmixed blessings. Often, there can be inheritance tax to pay, or associated costs such as transporting or insuring heavy or valuable items, or land may come burdened with mortgages or other secured debts. The general rule is that if the will does not specifically say who is to pay these associated charges, they will be payable by the recipient. Sometimes this makes the gift so burdensome that the recipient may wish to refuse it: to do this, they will disclaim the gift by indicating to the executors that they do not want it.

What is class gifts?

- Testamentary gift failure

So far, we have discussed testamentary gifts made to a specific individual, but it is also possible to make a gift to a group of individuals, or what is known as a 'class'. The most common example of this is a gift to the testator's descendants (children, grandchildren, etc). Under the general law, the class will 'close' - that is, no more people can become members of the class - at the time of the testator's death. Theoretically, therefore, a person born the day before the testator's death will inherit but a person born the day after will not. To remedy this perceived injustice, and to meet those injustices, the 'class closing rules' may be applied. These rules are beyond the scope of this book but you should be familiar with their broad outlines.

What us Beneficiaries dying at the same time/in the same incident (commorientes)?

Sometimes, the manner of a beneficiary's death can give rise to a particular problem. Let's say, for example, Kobi left everything to his brother Cyril, and Cyril left everything to his partner Marsha. Kobi and Cyril then die together in a car crash. If Kobi died first, Cyril will inherit all of his property and it will then pass on to Marsha under Cyril's will. But if Cyril died first, Marsha will only receive Cyril's estate and not Kobi's.

There may be sound factual evidence (from first responders attending the scene, perhaps) that as a matter of fact, Kobi died before Cyril. However, if there is not, then the commorientes rule will be applied (the term means 'persons dying together'). If it is genuinely not possible to tell which person died first, then the presumption is 'oldest person died first'. So in the example above, if Kobi were the oldest brother, then Marsha would inherit both estates; but if Cyril were the oldest brother, she would only inherit Cyril's.

What is ademption?

Ademption affects specific gifts only and has no relevance to general gifts.

The basic rule of ademption is that if, between making the will and dying, the item that was specifically gifted has gone out of the testator's estate, then that gift completely fails.

Manfred makes a will leaving all of his shares in Dimarmon plc to his stepdaughter Lyra. At the time he made the will, he had 200 Dimarmon shares worth a total of £2,000. The shares then went up in value and he sold them all three years after making the will for the sum of £20,000. However, he did not change his will before he died.
What happens in this situation?

As there were no Dimarmon shares in Manfred's estate when he died, the gift adeems and Lyra receives nothing.

Ademption and timing

Timing can be all-important because if the item survived to become part of the testator's estate, even if only for a few minutes or hours, but was then destroyed (for example in a fire), then the executors might be liable to pay over any insurance payment for the destroyed item to the disappointed beneficiary. If there is no clear evidence that the item survived the testator, then the gift adeems.

How can specific gifts be adeemed?

A 'specific gift' means exactly that: if the item named in the will is later replaced by another item, even if it is very similar, then the gift adeems. For example, if the testator leaves to a beneficiary 'my limited-edition Picasso print no. 163', but then sells it and buys another (otherwise almost identical) print numbered 876, the beneficiary will receive nothing.

What is abatement?

Abatement is the process by which the estate is reduced as the executors pay out all of the debts and liabilities owed by it to third parties. Debts and liabilities are always paid out of the estate first, before any distribution is made: s 33(2) Administration of Estates Act (AEA) 1925. The AEA sets out (at part II of the First Schedule) what property the executors should use to pay these liabilities, and in what order. We take a more detailed look at this duty of the personal representatives (PRS) in Chapter 8. If there is not enough in the estate to pay the liabilities and to make all the gifts, then classification becomes particularly important, because the executors must prioritise paying the liabilities over paying the gifts. If there is a shortage of assets after the liabilities have been paid, then general legacies will abate before specific legacies: in other words, the PRS should pay the specific legacies first, and then pay only those general legacies that can be paid out of the remaining assets. If there is not enough money in the estate, therefore, it is advantageous to be a specific legatee (that is, the recipient of a legacy) because specific legacies will be paid before general legacies (see Practice example 3.2). Where they can be paid in full from the specified property, demonstrative legacies are classed as specific legacies for the purposes of abatement.

When Stanislaus died, his estate was valued at £65,000. His will contained a specific legacy to his brother James of 'the sum of £5,000 in cash which is contained in the small safe inside the wardrobe of my home'. He also left a general legacy of £5,000 to his sister Nora.
When his executors reviewed his estate, they discovered that Stanislaus' estate had liabilities, on personal loans and credit cards, and on funeral and other expenses, of £57,000.
What happens in this situation?

Under the abatement rules, the executors are obliged to pay the liabilities of £57,000 out of the estate first. This leaves the sum of £8,000 in the estate. This is not enough to pay the full gifts to James and Nora. The executors are directed under the rules of abatement to pay the specific gift first: this is the gift to James, which is paid in full. Nora receives the £3,000, which is the only money remaining in the estate.

What is lapse?

A gift lapses when there is nobody to give it to: in plain terms, when the recipient of the gift has died before the testator or is otherwise disqualified from receiving it. These disqualifications include being unable to benefit because of a problem with witnessing the will, or subsequent remarriage, or having brought about the death of the testator, all of which we are going to consider in the following sections. A lapsed outright gift will fall back into the residue, unless it is already a residuary gift, in which case it will be given out according to the laws on intestacy (see Chapter 5) (so there would be a partial intestacy here). If the gift is of a limited interest, such as a life interest, then lapse means it moves forward to the next person in line.

This may not be what the testator wants: in fact, if it turns out that the rules of intestacy will apply, this may have an effect which the testator would definitely not have wanted. For this reason, a will often contains a fallback provision for what is to happen on a lapse, for example: 'My diamond-set signet ring to my nephew Sylvain, but if he shall predecease me or be otherwise disqualified from taking, to my nephew Mathieu'.

Albert's will leaves a life interest in the sum of £200,000 to Thacker, with the remainder to Copper. At the time that the will is made, Thacker and Copper are both in their 30s and in good health. However, four years later, and while Albert is still alive, Thacker is killed in a car accident. Albert dies a year after Thacker without changing his will.

What happens in this situation?

The gift of the life interest to Thacker has lapsed because Thacker is now dead. The gift immediately passes on to Copper, who receives an absolute interest in the £200,000 (that is, it is his to use as he likes).

There is, however, one extremely important exception to the principle of lapse, and that is where the intended beneficiary was a child (or other descendant) of the testator and has died before the testator but leaves behind a child or children (the testator's grandchildren). In these circumstances, s 33 of the Wills Act 1837 provides that even though the named beneficiary has died, the bequest under the will shall take effect as a devise or bequest to the beneficiary's children. This rule applies to both gifts to individual children and to a child as one of a class

What is Witnessing of a will by a beneficiary?

A beneficiary under a will cannot take their gift if either the beneficiary or their spouse/civil partner witnessed the will (see Chapter 1 for information on witnessing). The gift is treated as 'utterly null and void', which for all practical purposes means that it will lapse (see Practice example 3.4).

Fred and Jed are civil partners. Their friend Xanthe made a will in which she left £10,000 to Fred. The witnesses to Xanthe's will were Jed and Alton.
Can Fred receive the gift when Xanthe dies?

Fred cannot take the gift of £10,000 because his civil partner, Jed, witnessed the will. However, Xanthe's will is still valid, and all of the other provisions of the will can be carried out by her executors.
The rule only affects actual spouses and not engaged couples, so in Practice example 3.4, if Fred and Jed were fiancés at the time that the will was executed, the rule would not apply even if they went on to marry before the testator died. Note also that if there were three witnesses to the will, of whom the spouse was one (in other words, there was an 'extra' witness), then the will is valid and the gift can be made.

Note that this rule only affects the gift- it does not mean that the will itself is improperly witnessed and that it is therefore not valid. Watch out for this point as it is a frequent examination mistake. Candidates also frequently make the mistake of saying that a beneficiary is 'not allowed' to witness a will. There is nothing to prevent a beneficiary witnessing a will; however, the witnessing beneficiary will receive nothing. Watch out for this formulation in MCQs.

Professional conduct issues

This is an area where professional conduct and ethics can loom large. The reason for the rule is to prevent undue pressure being put on the testator by a witness/beneficiary at the very point of executing the will: we have already referred to the dangers of undue influence and duress in this area. You can probably see that if Jed is witnessing a will by which his civil partner is to benefit, he might, if he were unscrupulous, put pressure on Xanthe to leave Fred £10,000, or £100,000. It is very much in Jed's interest to do so. The law tries to prevent this from happening by barring Fred from taking any benefit at all if his civil partner witnessed the will.
The second point is that it is negligent for a solicitor to prepare a will which is then witnessed by a beneficiary or that beneficiary's spouse: see Ross v Caunters [1980] Ch. 297. A solicitor must always give very clear advice about who should not witness any particular will.

What is divorce, dissolution or annulment of marriage?

S 18A(1) of the Wills Act 1837 provides that upon divorce, dissolution or annulment of marriage, the provisions of any will which appoints the surviving ex-spouse as an executor, a trustee, or which leaves the ex-spouse property, shall take effect as if the former spouse died on the date of the decree absolute (that is, the day the divorce was finalised). Even if the will is otherwise completely valid, any gift to the former spouse will not take effect.

What is Forfeiture by reason of unlawful killing?

The final main reason for a gift to fail is, to put it simply, that the named beneficiary or recipient has in fact been the unlawful cause of the testator's death. The forfeiture rule applies to both wills and intestacy.
The rule is that a beneficiary who has unlawfully killed the deceased must forfeit their interest under the will or intestacy, because a killer cannot profit from their crime. 'Unlawful killing' includes not just murder of the deceased by the beneficiary, but also manslaughter, death by careless driving and aiding or abetting suicide. Whether the beneficiary has a good and viable defence is not relevant.

In some limited circumstances (though never when found guilty of murder), a killer/beneficiary can ask for relief from the forfeiture rule under the Forfeiture Act 1982. Any application under the Forfeiture Act must be brought within three months of the beneficiary's conviction (if a beneficiary misses the three-month deadline, while they can no longer claim that the forfeiture rule should be disapplied, they may still be able to make a claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975): see Chapter 9. The detailed provisions of the Forfeiture Act 1982 are outside the scope of this book, but you should ensure that you are familiar with the situations in which forfeiture will apply and when relief may be asked for.

What is alterations and amendments to wills as per s21?

21 of the Wills Act 1837 provides that 'no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will'.

What is the basic rule of s21?

The basic rule is that obliterations (that is, covering the words of the original will so that they are fully or partly illegible), interlineations (that is, writing between the lines of the original will) or any other alteration made after the will has been executed will not be valid or have any effect, except for two circumstances.

What is the exception to the basic rule of s21?

1. where the obliteration, interlineation or other alteration has been executed in accordance with s 9 of the Wills Act 1837 (see Chapter 1); or

2. where it is now impossible to read what was in the original will.

If either of these two circumstances apply, then the alteration will take effect

What is exception 1: alterations executed in accordance with s 9 of the Wills Act 1837

The requirement is that the alteration must be signed by the testator and by two attesting witnesses. The signature can be the full signature of each, but the initials of the testator and the witnesses will be enough to satisfy the exception. One reason for allowing initials is probably that it is more practical, as s 21 also provides that the signatures must appear in the margin or on some other part of the will opposite or near to the alteration. It is also permissible under s 21 to add a memorandum to the will (usually at the end) referring to the alteration, but that must be signed at the foot or end of the memorandum, or opposite it, by the testator and both witnesses. If this is done and duly executed, then there is no need for the signatures to be next to or opposite the alteration. However, the memorandum needs to refer to all of the alterations, or the ones which are not mentioned and not signed will be invalid.

What are the s9 formality requirements?

Testator must sign in person, or if they cannot sign in person for some reason, the alteration must be signed by some other person at the testator's direction and in the testator's presence. The attesting witnesses must also see the testator sign, and it must be clear that they are attesting to the testator's signature to the alteration and not just to the will itself.

What is Exception 2: the original words underneath the obliteration cannot be read?

If the alteration is an 'obliteration' - that is, it has completely covered the original wording so that it cannot be read - then the clause will take effect as if the covered words were blank.

The original wording of Dennis' will was: 'I give the sum of £2,500 to the Irchester Cricket Club'. The will was duly executed and validly witnessed. At a later date, Dennis scribbled over the words 'Irchester Cricket Club' with a ballpoint pen so heavily that it was impossible to read. This alteration was not signed by Dennis, nor was it witnessed.
What happens in this situation upon Dennis' death?

The will is admitted to probate as if the obliterated passage had been left blank: in other words, it is admitted to probate as 'I give the sum of £2,500 to [blank]'. As a result, the gift to Irchester Cricket Club will not be effective, even though the alteration has not been executed according to s 9.
The surprising result of this exception is that if the testator is determined enough to make a section of the will illegible, they will succeed in making it ineffective even if they do not sign it and have it witnessed.

Can obliterations occur when there are photocopies of the will?

The fact that there may be existing photocopies showing the original will, and therefore revealing what is underneath the obliterations, is irrelevant. It is whether or not the wording is legible on the original which is the deciding factor for the probate registry.

When is wording illegible, or, to use the words of the section, not 'apparent"? In essence, it is when it is optically apparent: that is, it can be read without the use of any intervening technology.
You should note here that where a testator has obliterated part of a will, then tried to insert substitute wording, but the substitute wording is either not properly executed or is executed but illegible, then what is called the 'conditional revocation' rule will apply

Alterations and amendments made before execution

We have already noted that the rule in s 21 applies only to alterations and amendments that are made after the will is executed. In theory, alterations and amendments that are made before the will is executed do not need to fall within either of the exceptions in s 21 to be valid.
However, there is a legal presumption, which the probate registry will apply (see Chapter 7), that any alteration or amendment to a will was made after execution unless it can be proved that it was made before.
As a result, it is good practice to ensure that all alterations and amendments, even if they are made well before the execution of the will, are witnessed and signed in a way that conforms to s 21.

Can alterations be made by pencil?

wills written in pencil are assumed to be 'deliberative'; that is, the testator is still thinking them over and they are not the final version (though this can be disproved by evidence). Where, however, the executed will is in ink (whether handwritten, printed or typewritten) and the alterations are made in pencil, it is assumed that they are not intended to be effective even if they are validly executed.

What is codicil?

A codicil is a supplemental or additional document which is made after the will and is intended to be annexed to it and read with it. It can add completely new clauses to an existing will or remove clauses from it. It can also make other changes such as naming new executors or beneficiaries.

The key element of a codicil is that it is entirely dependent on the existing will. In fact, it is customary for a codicil to contain a clause confirming the existing will. It may add to or subtract from the existing will, but it is always intended to be read together with it, and never on its own. While a will and a codicil are not regarded as being the same document, they are regarded as making the same testamentary disposition; that is, taken together, they deal with everything in the testator's estate.

A codicil must be executed in the same way as a will- that is, using the s 9 formalities - and should state clearly on its face that it is a codicil to a specifically identified will, for example: "This is a codicil to the will of Jane Smith dated 8 February 2022'.

After setting out the provisions of the will that the codicil alters or adds to or removes, the codicil then confirms the other terms of the existing will. This confirmation within the codicil has the effect of bringing down' the date of the will: the will is now looked on as having been made at the execution date of the codicil.

In what circumstances would a testator choose to execute a codicil to their will rather than write alterations on the will itself, or simply write a new will?

1. Cheaper and quicker way to make small or minor amendments to the will

2. If the original will is particularly complex (e.g. contains trusts)

Dean, an entrepreneur, made a will in 2018. It included pecuniary legacies of £25,000 each to five of his closest friends and appointed his uncle Jerry and his aunt Norma as his executors. It also contained a full trust over the residue of his estate. By 2022, Dean wished to make changes to his will. He had decided that he wished to increase the amount of the pecuniary legacies to £40,000 and to add the names of two other friends, who had been particularly loyal to him during some business troubles. In the meantime, also, his uncle Jerry had died and he wished to appoint one of the partners from his solicitors, Minot & Co., as a substitute executor.
Because Dean's will was complex and contained a full trust, and the changes Dean wished to make did not affect the main provisions of the will, Dean decided to execute a codicil rather than make a new will. The codicil made the changes and otherwise confirmed the 2018 will. It was executed and witnessed as per s 9 of the Wills Act 1837.

What is the effect of this 2022 codicil?

The effect of making the 2022 codicil is that the 2018 will and the 2022 codicil will be read together as making one testamentary disposition. The seven friends mentioned by Dean in his original will and in the codicil will all receive pecuniary legacies of £40,000. The executors of the will are now Dean's aunt Norma and one of the partners from Minot & Co. The effect of executing the codicil is that the whole of the will is read as if it had been made in 2022 and not in 2018.