Interpretation of wills and failure of gifts - Failure of gifts: uncertainty, beneficiary as witness, divorce

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Overview

Understanding the interpretation of wills and the reasons for gift failure is vital for legal professionals and those preparing for the SQE1 FLK2 exam. This article examines three main factors that can lead to the failure of gifts in wills: drafting ambiguities, the role of beneficiaries as witnesses, and the impact of divorce on testamentary dispositions.

Uncertainty in Wills

Ambiguity in wills often leads to the failure of gifts. A testator's intentions must be clearly expressed. Courts have developed methods to address such ambiguities, distinguishing between their types and consequences.

Types of Uncertainty

  1. Subject Matter Uncertainty: Occurs when the property isn't clearly identified. In Re Golay's Will Trusts [1965], the court upheld a seemingly vague gift, providing criteria for trustees to follow.

  2. Object Uncertainty: Arises when beneficiaries are unclear. McPhail v Doulton [1971] established that a trust remains valid if it's certain whether someone belongs to the beneficiary class.

  3. Administrative Uncertainty: Relates to the practical implementation of the gift. In Re Baden's Deed Trusts (No 2) [1973], courts distinguished clarity of terms from the ability to prove someone belongs in the class.

Legal Guidelines

Courts generally aim to honor a testator’s intentions when possible, adhering to the maxim "it is better for a thing to have effect than to be made void." This was stressed in Marley v Rawlings [2014], emphasizing a purposive approach.

However, there are limits. In Re Tuck's Settlement Trusts [1978], Lord Denning stated that courts cannot alter a will to give it a new meaning.

Example: The Coin Collection Issue

A testator leaves "my valuable coin collection" to his niece. Over time, some coins are sold and new ones added. This raises questions about what constitutes "valuable" and which coins are included. To resolve this, courts may consider outside evidence per section 21 of the Administration of Justice Act 1982.

Beneficiary as Witness

The rule against beneficiaries witnessing wills aims to prevent conflicts and ensure integrity in the will-making process, as codified in section 15 of the Wills Act 1837.

Statutory Framework

Section 15 states that if a person witnesses a will in which they (or their spouse) are given a gift, that gift is void, while the rest of the will stays valid.

Exceptions

  1. Creditor Witnesses: Creditors can witness a will that includes payment provisions for their debt.

  2. Beneficiary’s Spouse as Witness: If a beneficiary's spouse witnesses the will, the gift fails, even if the beneficiary doesn't witness it.

  3. Subsequent Marriage: A witness marrying a beneficiary post-execution doesn’t invalidate the gift at the time of attestation.

  4. Partial Invalidity: Only the witness's gift is void, preserving the rest of the will.

Case Law

In Thorpe v Bestwick (1881), a beneficiary who witnessed a later document didn’t lose their original legacy. In Re Trotter [1899], a witness’s wife's gift was void, regardless of the witness's awareness at the will signing.

Example: The Unintentional Witness

A testator asks a neighbor, John, to witness her will, not realizing she included a small gift for him. After her death, John finds he’s a beneficiary:

  1. John's gift is void under section 15.
  2. The will remains valid.
  3. Any gift to John's spouse is also void.
  4. The court cannot uphold the gift due to its size or context.

Divorce and Its Effects on Wills

Divorce profoundly affects testamentary dispositions. The law acknowledges that such life changes may reshape a testator's wishes about their former spouse.

Statutory Provisions

Section 18A of the Wills Act 1837 states that after a divorce, any gift to a former spouse lapses, barring contrary indication in the will.

Key Points

  1. Automatic Lapse: Divorce nullifies gifts to a former spouse unless stated otherwise in the will.

  2. Will Preservation: Other parts of the will remain unaffected.

  3. Executor Role: Appointments of former spouses as executors assume their death as of annulment.

  4. Contrary Intention: Testators can explicitly state intentions to preserve gifts post-divorce.

Judicial Interpretation

In Re Sinclair (Deceased) [1985], "former spouse" referred only to one who was the spouse at will creation and later divorced.

Example: Post-Divorce Will

A testator leaves everything to his wife, Sarah. They divorce, and he dies without updating his will:

  1. Sarah's gift lapses under section 18A.
  2. If Sarah is an executor, she's treated as deceased at divorce.
  3. The estate is distributed by intestacy rules, unless other valid dispositions exist.

Conclusion

Recognizing the factors leading to the failure of gifts in wills is essential for legal practice and SQE1 FLK2 exam success. Key points include:

  1. Uncertainty arises from vague property, unclear beneficiaries, or administrative challenges.
  2. Courts strive to honor the testator’s clear intentions where feasible.