Construction - meaning
interpretation
rectification and construction - what is first ?
1 rectify
2 construct
rectificatin provision
s.20 Administration of Justice Act 1982
(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence
○ (a) of a clerical error; or
(b) of a failure to understand his instructions,
rectification case + test
- Re Segelman (deceased) [1995] 3 All ER 676, 681 per Chadwick J
○ The Court must ask 3 questions:
§ what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought;
§ whether the will is so expressed that it fails to carry out those intentions; and
whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.
construction provision
s.21 Administration of Justice Act 1982
* Interpretation of wills - general rules as to evidence.
* (1)This section applies to a will -
○ (a) in so far as any part of it is meaningless;
○ (b) in so far as the language used in any part of it is ambiguous on the face of it;
○ (c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation
Construction - key rules
- “The Golden Rule”
○ Re Harrison (1885) 30 Ch D 390, 394-95 per Lord Esher MR:
§ ‘There is one rule of construction…that when a testator has executed a will in solemn form you must assume…that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.’- “Put Yourself in the Testator’s Shoes/Seat”
○ Re Tepper’s Will Trusts [1987] 1 All ER 970, 983 per Scott J:
§ ‘a will falls to be construed…from the testator’s armchair. The question is what the testator, sitting in his armchair, meant by [the words he used]’
- “Put Yourself in the Testator’s Shoes/Seat”
Mutuals wills vs mirror wills
- Distinct from mirror wills – see Marley v Rawlings [2014] Lecture 16
○ Mirror wills can be read independently
Mutual wills can NOT be red independently - because they are dependent on each other
2 types of conditional gifts
○ Condition precedent - a condition has to be met before the gift is taken (example: the beneficiary has to be 21 to take the gift; contingent or vested interest but once they satisfy the condition they can take the gift)
Condition subsequent - a condition of defeasance; usually arises after the beneficiary took the gift (if they breach a certain condition they can loose a gift sometime in future; less practical and more difficult to enforce)
Condtitional gifts void - 2 types of uncertainty
§ Conceptual uncertainty: ‘words…are too vague and indistinct for a court to apply’ (too vagie and indistint)
Evidential uncertainty: ‘words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts’ (difficulty in applying the words because of uncertain facts)
Void vs voidable marriages
- Void:legally null (over; never existed in the eyes of the law) – spouse/cpnotentitled on intestacy
- Divorce/Dissolution
○ Decree absolute pre-06 April 2022/Final Order = spouse/cp predeceased
Voidable:legally valid (continuing) – spouse/cp entitled on intestacy
Disclaimer
the beneficiary does not want the gift or whatever will pass to them on intestacy
effect: lapse or accelertion
4 methods of revocation
- 4 methods of revoking a will:
○ SS 18 and 18A Wills Act 1837
§ Marriage or Civil Partnership
□ n/a to void marriages/cp
□ applicable to voidable marriages/cp
□ If will made in contemplation of marriage no revocation (s 18(3))
○ S 20 Wills Act 1837
§ Another will or codicil
§ By writing executed like a will
Destruction
Lost
Is the capacity to revoke a will the same as for making a will ?
yes
2 methods of revival
- 2 methods of reviving a will:
- S 22 Wills Act 1837
○ Re-execute the will; or
Make a codicil… showing an intention to revive the will (re goods of steele 1865-69)
- S 22 Wills Act 1837
Can a destroyed will be revived ?
NO
