Wills: Establishing Entitlement Practice Flashcards

A set of vocabulary flashcards covering legal principles of establishing entitlement in wills and the administration of estates, based on the SQE1 syllabus.

Executors

Personal representatives specifically appointed by the testator's will to deal with the estate.

Administrators

People dealing with an estate according to statutory rules when no appointment was made in the will.

Personal representatives

A generic term referring to both executors and administrators.

Non-technical words

Words in a will that the court presumes bear their ordinary meaning unless the context suggests otherwise.

Technical words

Words given their specific legal meaning by the court, such as 'personal' meaning personalty rather than realty, as seen in Re Cook [1948].

s 21 Administration of Justice Act 1982

The statute permitting extrinsic evidence to interpret a will if any part is meaningless, ambiguous on its face, or ambiguous in light of surrounding circumstances.

Thorn v Dickens [1906]

A case where extrinsic evidence was admitted because a gift to 'mother' was ambiguous; the testator's mother was dead, and evidence showed he called his wife 'mother'.

s 20 Administration of Justice Act 1982

The provision allowing the court to rectify a will if it fails to carry out the testator's intentions due to a clerical error or a failure to understand instructions.

Clerical error

An error of a clerical nature, such as writing 'one half of my share' instead of 'my one half share' as in Joshi v Mahida [2013].

Failure to understand instructions

A ground for rectification where a solicitor misunderstands the testator's intent, such as gifting an entire farm instead of just a farmhouse as in Sprackling v Sprackling [2008].

s 24 Wills Act 1837 (Property)

Provides that a will is construed to 'speak from the date of death' regarding real and personal estate, unless a contrary intention appears.

Identifying the beneficiaries (General rule)

The principle that references to beneficiaries are generally construed to mean people alive at the time of execution, meaning the will 'speaks from the date of execution' regarding people.

Adopted children

Children normally treated as children of the adoptive parents in a will, rather than their birth parents, unless the will provides otherwise.

Gender Recognition Act 2004, s 15

States that acquiring a new gender does not affect property disposal under a will made before $4$ April $2005$, but may do so for wills made after that date.

Uncertainty

A reason for the failure of a gift if the wording makes it impossible to identify the subject matter or the recipient, with an exception for general charitable purposes.

s 15 Wills Act 1837

The rule that a gift fails if a beneficiary, or their spouse or civil partner, acts as a witness to the will, though the will itself remains valid.

ss 18A and 18C Wills Act 1837

Provisions stating that if a marriage or civil partnership is dissolved or annulled, gifts to the former spouse or partner pass as if they had died on the date of dissolution.

Ademption

The failure of a specific legacy because the testator no longer owns the property at the date of death.

Lapse

The failure of a gift in a will that occurs if the beneficiary dies before the testator; the property usually falls into residue.

s 184 Law of Property Act 1925

The statutory presumption that where the order of two deaths cannot be proved, the elder is deemed to have died first.

Survivorship clauses

Provisions in a will making gifts conditional upon a beneficiary surviving the testator for a specific period, such as $28$ days.

s 33 Wills Act 1837

An exception to the doctrine of lapse stating that gifts to the testator's child or remoter issue pass to that beneficiary's issue if the beneficiary predeceases the testator.

Disclaimer

When a beneficiary refuses to accept a gift; they are then treated as having predeceased the testator.

Forfeiture rule

A public policy rule preventing an individual from benefiting from the estate of a person they have unlawfully killed or aided in killing.

Forfeiture Act 1982

Allows the court to modify the effect of the forfeiture rule in certain cases (excluding murder) if an application is made within $3$ months of conviction.

Codicil

A supplement to a will that must be executed the same way as a will and has the effect of republishing the will as of the date of the codicil.