Interpretation of wills and failure of gifts - Establishing the testator's intention

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Overview

Interpreting wills and addressing failed gifts are key aspects of the SQE1 FLK2 exam. This article examines these topics, focusing on revealing the testator's intent, resolving ambiguities, and tackling issues like lapse and ademption. Proficiency in these areas prepares candidates to handle complex scenarios in exams and legal practice.

Establishing the Testator's Intent

The main aim in interpreting a will is to uncover and respect the testator's wishes. This principle, deeply rooted in common law and supported by statutes, guides how wills are constructed.

The Importance of Intent

Courts often focus on understanding the testator's intent. In Marley v Rawlings [2014] UKSC 2, Lord Neuberger noted:

"The aim is to identify the intention of the testator by interpreting the words used in the will in their documentary, factual and commercial context."

This requires examining the will's language along with the situation it was made in.

Statutory Framework

The Wills Act 1837, as amended, outlines the legal basis for interpreting wills. Section 21 of the Administration of Justice Act 1982 allows courts to use extrinsic evidence for interpretation when:

  1. Parts of the will are unclear
  2. Will language doesn't reflect the testator's intent
  3. Evidence shows the testator's intent

This provision expands what can be analyzed, providing a fuller view of the testator's wishes.

Resolving Ambiguities in Wills

Ambiguities can be patent (obvious) or latent (hidden). Resolving these is vital for proper interpretation.

Patent Ambiguities

Patent ambiguities are clear in the will. For example:

"I leave £10,000 to my nephew John Smith and £20,000 to my nephew John Smith."

The court focuses on the will itself to solve such ambiguities, as shown in Re Brookes' Will Trusts [1939] Ch 993, emphasizing examining the entire will.

Latent Ambiguities

Latent ambiguities arise from external facts. For instance:

"I leave my house at 10 Oak Street to my sister."

If two houses exist at 10 Oak Street, it creates a latent ambiguity. Extrinsic evidence may clarify the intent, as in Doe d. Hiscocks v Hiscocks (1839) 5 M & W 363.

The Armchair Principle

Courts use the "armchair principle," as in Allgood v Blake (1873) LR 8 Ex 160, where they place themselves in the testator's shoes to understand the context and mindset when the will was drafted.

Lapse of Gifts

A lapse happens when a beneficiary dies before the testator, possibly going against the testator's wishes. Preventing lapse through proper planning is important.

Statutory Prevention

The Wills Act 1837, as amended, offers remedies against lapse:

  1. Section 33: Protects gifts to children who die before the testator but have their own descendants.
  2. Section 33A: Addresses gifts to a spouse if the marriage ends in divorce or annulment.

These provisions aim to maintain the testator's intentions in family situations.

Example of Lapse

Consider this scenario:

Testator T leaves "£50,000 to my son S." S dies before T, leaving a daughter D.

Without intervention, the gift lapses. However, Section 33 preserves the gift for D, upholding the presumed intent.

Drafting to Avoid Lapse

Careful drafting can prevent lapses. For example:

"I leave £100,000 to my brother B, but if he dies before me, to his children equally."

This ensures the testator's wishes are followed even if the main beneficiary dies first.

Ademption and its Impact

Ademption occurs when a willed item is no longer part of the estate at the testator’s death. Understanding ademption is key for accurate will interpretation.

Ademption Principle

In Ashburner v MacGuire (1786) 2 Bro CC 108, it was established that a gift of a specific item not present in the estate fails, regardless of intent or reasons for absence.

Ademption Exceptions

Some exceptions include:

  1. Section 24 of the Wills Act 1837: Prevents ademption if a gift is taken under a compulsory purchase order.
  2. Mental Capacity Act 2005: Section 46 states ademption doesn't occur if an asset is disposed of by an attorney or court-appointed deputy.
  3. Re Mickleham [1855] 1 K & J 336: If a trust-held property is converted, the beneficiary is entitled to its new form.

Example of Ademption

Consider this case:

Testator T leaves "my vintage Rolls-Royce to my friend F." Before T dies, the car is scrapped, and insurance pays £50,000.

This results in ademption, and F doesn't receive the payout as it represents a different asset.

Practical Applications and Exam Relevance

For the SQE1 FLK2 exam, candidates need to:

  1. Analyze complex will provisions and spot ambiguities.
  2. Apply statutes and case law to interpret wills.
  3. Advise on the effects of lapse and ademption.
  4. Show how courts balance will language with implementing the testator's intent.

Case Study

Testator T's will includes: "I leave my house at 123 Elm Street to my niece N, my shares in XYZ Ltd to my friend F, and £50,000 to my brother B." At T's death:

  1. T moved to 456 Oak Avenue.
  2. XYZ Ltd merged, and shares are now in a new entity.
  3. B is deceased, leaving two children.

Candidates should:

  • Discuss ademption possibilities with the house change.
  • Determine if the shares can be traced to the new company.
  • Apply Section 33 of the Wills Act 1837 to B's gift.

Conclusion

Becoming proficient in will interpretation and understanding gift failures is essential for SQE1 success.