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

Learning Outcomes

After reading this article, you will be able to identify and apply the legal rules for interpreting wills, including how courts establish the testator’s intention, resolve ambiguous wording, and address the consequences when gifts fail due to lapse or ademption. You will be able to distinguish between different types of ambiguities, apply relevant statutory provisions, and advise on practical scenarios involving failed testamentary gifts.

SQE1 Syllabus

For SQE1, you are required to understand how wills are interpreted and what happens when gifts in a will fail. Focus your revision on:

• the principles and statutory rules for interpreting wills and establishing the testator’s intention
• the distinction between patent and latent ambiguities, and the admissibility of extrinsic evidence
• the legal consequences of failed gifts, including lapse and ademption, and the statutory exceptions
• how to apply these rules to practical scenarios and advise on the outcome for beneficiaries

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a patent and a latent ambiguity in a will, and how does the court resolve each?
2. What is the effect of section 33 of the Wills Act 1837 if a testator’s child, who is a beneficiary, dies before the testator leaving children?
3. What is ademption, and when might a specific gift in a will be saved from ademption?
4. When can extrinsic evidence be admitted to interpret a will?

Introduction

When interpreting a will, the primary objective is to give effect to the testator’s intention. This requires careful analysis of the will’s wording, the circumstances at the time it was made, and the application of statutory and common law rules. Ambiguities in a will can arise, and gifts may fail for various reasons. Understanding how courts resolve these issues and the consequences for beneficiaries is essential for SQE1.

Interpreting Wills: Establishing the Testator’s Intention

The starting point for interpreting a will is to determine what the testator meant by the words used. The court’s role is not to rewrite the will but to ascertain and give effect to the testator’s expressed wishes.

Key Term: testator’s intention The true meaning the testator intended to convey in the will, determined by the language used and the context at the time of execution.

The Ordinary Meaning and Context

Courts begin with the ordinary meaning of the words in the will, read in the context of the whole document. If the meaning is clear, that meaning is applied. However, courts may consider the circumstances known to the testator when the will was made to resolve uncertainty.

Key Term: armchair principle The approach where the court places itself in the position of the testator at the time the will was made, considering all relevant surrounding circumstances.

Ambiguities in Wills

Ambiguities are divided into two types:

Key Term: patent ambiguity An ambiguity that is apparent on the face of the will’s wording.

Key Term: latent ambiguity An ambiguity that arises only when applying the will to the facts, despite clear wording.

Resolving Ambiguities

• For patent ambiguities, the court generally cannot admit extrinsic evidence and may declare the gift void if the meaning cannot be determined.
• For latent ambiguities, the court may admit extrinsic evidence (including evidence of the testator’s intention) to resolve the uncertainty.

Section 21 of the Administration of Justice Act 1982 allows extrinsic evidence to be admitted in certain cases, including where the language is ambiguous or meaningless.

Worked Example 1.1

A will leaves “£10,000 to my cousin Alex.” The testator has two cousins named Alex. Can the court admit evidence to determine which Alex was intended?

Answer: Yes. This is a latent ambiguity. The court may admit evidence of the testator’s relationships and statements to clarify which cousin was meant.

Use of Extrinsic Evidence

Extrinsic evidence may be admitted to interpret a will if:

• the wording is ambiguous or meaningless
• there is a latent ambiguity
• the will refers to a document or fact outside the will

However, evidence of the testator’s intention is not generally admissible unless the case falls within these exceptions.

Revision Tip

When revising, practice distinguishing between patent and latent ambiguities and know when extrinsic evidence is allowed.

Failure of Gifts: Lapse and Ademption

Gifts in a will can fail for several reasons. The two most common are lapse and ademption.

Lapse

A gift lapses if the beneficiary dies before the testator, unless a substitutional provision or statutory exception applies.

Key Term: lapse The failure of a testamentary gift because the beneficiary predeceased the testator or is otherwise unable to take.

Statutory Exception: Section 33 Wills Act 1837

Section 33 provides that if a testator’s child or other direct descendant is given a gift but dies before the testator, leaving issue who survive the testator, the gift passes to those issue unless the will shows a contrary intention.

Worked Example 1.2

A testator leaves “£20,000 to my daughter, Sophie.” Sophie dies before the testator, leaving two children. What happens to the gift?

Answer: Section 33 applies. The gift passes equally to Sophie’s two children, unless the will states otherwise.

Ademption

A specific gift is adeemed if the item is not part of the testator’s estate at death.

Key Term: ademption The failure of a specific gift in a will because the subject matter is no longer owned by the testator at death.

When Does Ademption Occur?

• If the testator sells, gives away, or otherwise disposes of the specific item before death, the gift fails.
• If the item changes in form but not substance (e.g., shares converted in a company reorganisation), the gift may still take effect.

Exception: Dispositions by Attorneys or Deputies

If an asset is disposed of by an attorney or deputy under the Mental Capacity Act 2005 during the testator’s incapacity, the beneficiary may be entitled to substitute property or the proceeds, unless the will indicates otherwise.

Worked Example 1.3

A will leaves “my car to my nephew, Ben.” Before death, the testator’s attorney sells the car and the money is still in the estate. Is Ben entitled to anything?

Answer: If the sale was by an attorney during the testator’s incapacity, Ben may be entitled to the sale proceeds, unless the will provides otherwise.

Exam Warning

For SQE1, be careful to distinguish between specific, general, and demonstrative gifts. Only specific gifts are subject to ademption.

Other Reasons for Failure of Gifts

• Disclaimer: A beneficiary may refuse a gift, causing it to fall into residue or pass as on intestacy.
• Divorce or Dissolution: Gifts to a former spouse or civil partner generally fail if the relationship ends before the testator’s death, unless the will states otherwise.
• Forfeiture: A beneficiary who unlawfully kills the testator is treated as having predeceased the testator.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The court’s primary aim is to give effect to the testator’s intention, using the ordinary meaning of the will’s words and the context.
• Patent ambiguities are apparent on the face of the will; latent ambiguities arise when applying the will to the facts.
• Extrinsic evidence is admissible for latent ambiguities and in certain statutory cases.
• A gift lapses if the beneficiary predeceases the testator, unless section 33 Wills Act 1837 or a substitution clause applies.
• A specific gift is adeemed if the item is not in the estate at death, subject to exceptions for attorney/deputy sales.
• Know the statutory exceptions and how to apply them to practical scenarios.

Key Terms and Concepts

• testator’s intention
• armchair principle
• patent ambiguity
• latent ambiguity
• lapse
• ademption