Interpretation of wills and failure of gifts - Types of gifts: specific, general, demonstrative, pecuniary, residuary

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Overview

Understanding the interpretation of wills and potential gift failures is essential in probate law, especially for preparing for the SQE1 FLK2 exam. This guide explores the details of various gift types: specific, general, demonstrative, pecuniary, and residuary. It covers the legal rules for their interpretation, when gifts might fail, and the effects on estate administration.

Legal Principles of Will Interpretation

The Golden Rule

The key principle in interpreting wills is the "Golden Rule," from Perrin v Morgan [1943] AC 399. This standard states that words in a will should keep their usual meaning, unless doing so leads to an illogical outcome or contradicts the will’s overall context.

Contextual Interpretation

Courts use a contextual approach, looking at the will as a whole and the conditions in which it was created. The Marley v Rawlings [2014] UKSC 2 case highlights the need to determine the testator's intention through the will’s language and surrounding circumstances.

Extrinsic Evidence

While focusing on the will, outside evidence can be admitted to clarify uncertainties. The difference between obvious and hidden ambiguities, as seen in Re Bacon's Will Trusts [1975] 1 WLR 1401, remains key for deciding when such evidence is appropriate.

Types of Gifts and Their Characteristics

Specific Gifts

Specific gifts are identifiable properties intended for a certain beneficiary, subject to ademption. Understanding ademption is important for SQE1 FLK2 candidates.

Key Features

  • Identifiable property
  • Subject to ademption
  • Prioritized in estate distribution

Example: If a testator bequeaths "my vintage Rolex watch" to their niece, and the watch is sold prior to the testator's death, the niece receives nothing unless an alternative gift is mentioned in the will.

General Gifts

General gifts are not linked to specific assets and are fulfilled from the estate's general assets. They are less likely to fail due to ademption.

Key Features

  • Not linked to specific property
  • Fulfilled from general estate
  • Less likely to fail

Example: A testator leaves "£10,000 to my brother." If only £9,000 is available, the gift abates proportionately, with adjustments as needed.

Demonstrative Gifts

Demonstrative gifts combine features of specific and general gifts, drawing from a particular source but allowing for fallback to the general estate.

Key Features

  • Specified source for payment
  • Fallback to general estate if source is insufficient

Example: A gift of "£20,000 from my Barclays account" pays £15,000 from the account, and any shortfall from the general estate.

Pecuniary Gifts

Pecuniary gifts are fixed sums of money and can involve adjustments for interest or inflation.

Key Features

  • Fixed sum
  • May accrue interest

Example: A bequest of "£50,000 to my alma mater" may grow with interest if not settled within a year of the testator’s death.

Residuary Gifts

Residuary gifts cover the remainder of the estate after all other bequests have been made and expenses paid.

Key Features

  • Covers remaining estate
  • Acts as a catch-all

Example: Provisions such as "residue divided among my children" include unanticipated assets.

Failure of Gifts and Legal Implications

Recognizing when gifts might fail is vital for SQE1 FLK2 exam candidates.

Ademption of Specific Gifts

If the subject of a specific gift is absent from the testator's estate at death, the gift fails, as clarified in Re Slater [1907] 1 Ch 665.

Lapse

A gift lapses if the beneficiary predeceases the testator, though there are statutory protections, particularly for descendants.

Disclaimer and Forfeiture

Beneficiaries might renounce gifts, or they might forfeit them due to conduct, as explained in Re Guinness's Settlement [1966] 1 WLR 1335.

Practical Application and Exam Relevance

For the SQE1 FLK2 exam, candidates should:

  1. Classify different gift types in a will
  2. Apply legal rules to assess gift validity
  3. Evaluate scenarios involving potential gift failures
  4. Advise on effective will drafting
  5. Understand executors' roles in gift administration

Complex Scenario: Consider these will provisions:

  1. "My house at 123 High Street to my daughter Jane"
  2. "£50,000 from my HSBC savings account to my son John"
  3. "My shares in XYZ Ltd to my brother Mark"
  4. "£10,000 each to my nieces Sarah and Emily"
  5. "The residue divided between my local church and animal shelter"

Upon the testator's death:

  • The house was sold; proceeds are in an account
  • The HSBC account holds £30,000
  • XYZ shares doubled in value
  • Emily predeceased the testator, survived by two children

Candidates should analyze these scenarios to understand the implications of will provisions.