When drafting a will, there are many factors for both client and will writer to contemplate. However, there’s one particularly significant question to consider in order to avoid costly challenges: Are descriptions in a will construed as to their meaning at the time the will was written, or at the date of the testator’s death?
Unfortunately for both client and advisor, the answer to this question is: it depends.
It depends on whether you are referring to the subject matter of a gift or the objects of the gift (the beneficiaries). It also depends on the precise wording of the clause, as the addition or absence of one simple word can alter the meaning of the gift entirely. Specific legacies are notorious for the potential they pose for post-death legal disputes to arise. Because of this, any will-drafter should be very precise in their wording and acutely aware of the pitfalls that loose drafting may cause.
What is the law? Subject Matter of a Gift/Assets
Section 24 Wills Act 1837 provides that: “Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” So, when it comes to descriptions of assets, a will speaks from death, according to the law.
While this sounds simple and clear, it is only the case “unless a contrary intention shall appear by the will.” ‘Contrary intention’ is the key phrase here. For example, the simple addition of the word ‘my’ has been held to show sufficient contrary intention to override S.24. As such, a legacy of ‘my car’ will generally not speak from death and will instead refer to the car that the testator owned when the will was written. If that car was subsequently sold and a replacement bought, the legacy would adeem – resulting in a very disappointed beneficiary. If this is not the intention of the testator, the clause can be drafted to ensure this doesn’t happen.
Conversely, if it was the specific intention of the testator, then this could be made clearer by including a detailed description of the car, so there is no ambiguity as to what the testator meant.
It should be noted that the law is not unambiguous with regards to the interpretation of such contrary intentions. The court has wide powers in this regard and may introduce extrinsic evidence to assist with interpretation. This can lead to uncertainty – and any uncertainty invites a disappointed beneficiary to challenge the will.
This also illustrates the importance of a testator regularly reviewing their will to identify changes in circumstance that may result in a gift failing.
Interestingly, where a legacy contains a generic description of a class of assets that is capable of increasing or decreasing such a ‘my personal chattels’, S.24 will apply. As no specific item is singled out, it will be the items fitting that description at the date of death that will determine what is gifted, not the items fitting that description at the date of the will, despite the inclusion of the word ‘my’.
Objects of a gift/Beneficiaries
It is clear from the wording of S.24 that it applies only with reference to the subject matter of a gift i.e., the assets of the estate. It does not apply to descriptions of beneficiaries (the objects of the gift). Here, the law provides the opposite position to S.24 whereby the will speaks from the date of execution, again, unless contrary intention is shown. In this case, a gift to ‘my housekeeper’ or ‘my daughter’s husband’ is to the person fitting that description when the will was signed, so a subsequent housekeeper or husband would miss out. Clearly, any uncertainty here would be avoided by referring to the individual by name and not only by their relationship to the testator.
The above rule does not apply to class gifts, however, and so gifts to ‘my grandchildren’ will be determined by the members of that class as ascertained at death or when the class closes depending on the wording of the will, rather than at the date of execution.
Of course, the solution to the issues raised throughout this article is for the will-drafter to establish a clear understanding of what the testator intends and to draft the will using accurate and precise descriptions of any beneficiaries or assets named.
The Codicil Trap
An important aspect of the law in this area that may catch out the unsuspecting testator regards codicils. Codicils are often drafted to make minor changes to a will, but their effect can be dramatic. This is because a codicil is deemed to republish a will rather than simply amend it. As such, the original will is deemed to be executed on the date of the codicil, not the date it was first drafted. In this case, if the testator’s housekeeper has changed since the original will was drafted, the execution of a codicil will see the legacy to ‘my housekeeper’ go to a different person entirely. Similarly, the gift of ‘my car’ will be the car at the date of the codicil and not the one that was owned when the original will was drafted.
As a testator may have executed the codicil to simply change executors, for example, the effect that the republication has on the legacies in their will is unlikely to be something they would ever consider. This is yet another reason to avoid codicils. A new will, where the whole document can be read and reviewed and dealt with as a new instruction, is a much safer option.
- When it comes to the subject matter of a gift, a will speaks from death unless contrary intention is expressed in the will
• When it comes to the objects of a gift (i.e. the beneficiaries), a will speaks from date of execution unless contrary intention is expressed in the will
• The courts have wide powers of interpretation to determine whether the wording of a will establishes contrary intention
• A codicil republishes a will, which can have the effect of altering the subject matter of a gift or even the beneficiary
• The professional will-drafter should always be mindful of these rules and aim for precise wording to establish clear intention. This avoids costly court cases challenging the meaning of a will
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This article was submitted to be published by CTT Group as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.