Interpretation of wills and failure of gifts - Establishing ...

Learning Outcomes

This article outlines the interpretation of wills to establish the testator’s intention and the principal ways in which testamentary gifts can fail, including:

• understanding the core common law and statutory principles used by the courts to construe wills and give effect to the testator’s intention in SQE‑style problem questions
• distinguishing patent from latent ambiguities and applying section 21 Administration of Justice Act 1982 to determine when extrinsic evidence, including evidence of intention, is admissible
• analysing when rectification under section 20 Administration of Justice Act 1982 is available, how it differs from mere interpretation, and the evidential requirements for a successful rectification claim
• applying section 24 Wills Act 1837 on a will “speaking from death” to questions about property, and contrasting this with the rules for identifying beneficiaries described in the will
• evaluating different reasons why gifts fail, including lapse, ademption (with particular focus on attorney or deputy sales during incapacity), disclaimers, divorce or dissolution under section 18A Wills Act 1837, and forfeiture, and explaining their consequences for residue and intestacy
• working through class gifts, description and identification problems, and the armchair principle so you can predict who ultimately takes the property in complex exam scenarios

SQE1 Syllabus

For SQE1, you are required to understand the interpretation of wills to establish the testator’s intention and the principal rules governing failure of gifts, with a focus on the following syllabus points:

• the principles and statutory rules for interpreting wills and establishing the testator’s intention
• section 21 Administration of Justice Act 1982: admitting extrinsic evidence where wording is ambiguous or meaningless
• section 20 Administration of Justice Act 1982: rectification of wills and the limits of the court’s powers
• section 24 Wills Act 1837: will “speaks from death” for property, contrasted with the approach to identifying beneficiaries
• 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
• section 33 Wills Act 1837 (anti‑lapse) and section 18A Wills Act 1837 (effect of divorce/dissolution)
• disclaimers, forfeiture and their practical operation
• 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.

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.

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.

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.

Two basic presumptions assist:

• non‑technical words are given their ordinary meaning in context
• technical terms carry their technical meaning unless the will shows a contrary usage

For example, “personal estate” ordinarily refers to personalty rather than land. Presumptions can be rebutted if the will (and any admissible extrinsic evidence) clearly indicate the testator used a word differently.

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

• Traditionally, for patent ambiguities, courts were slow to admit extrinsic evidence and might declare the gift void for uncertainty if the meaning could not be determined.
• For latent ambiguities, courts have long admitted 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 on its face (patent ambiguity), ambiguous in light of surrounding circumstances (latent ambiguity), or meaningless. This statutory provision modifies the traditional approach: where section 21 applies, the court may admit evidence of the testator’s intention to assist in interpretation. Such evidence remains an aid to construction, not a licence to rewrite the will.

Key Term: rectification
A limited statutory power under section 20 Administration of Justice Act 1982 to correct a will that fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions.

Rectification is distinct from interpretation. Interpretation ascertains meaning from the words used; rectification alters the words to reflect clear instructions where a qualifying mistake occurred. Rectification requires cogent evidence of the testator’s instructions and the error’s nature.

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. In rare situations where the words used do not fit the surrounding circumstances, courts may admit evidence to show an unconventional usage. For example, “all to mother” could be construed to mean “wife” if the testator consistently referred to his wife as “mother" and knew his mother had predeceased him.

Worked Example 1.2

A solicitor mis‑typed a dispositive clause: the testator intended to give “my one half share” of a property but the will reads “one half of my share.” The clause changes the quantum of the gift. What remedy is available?

Answer:
Rectification may be ordered under section 20 AJA 1982 where the will fails to carry out the testator’s clear instructions due to a clerical error. If evidence (e.g., attendance notes, drafts) shows the intended disposition, the court can correct the wording.

The Will “Speaks from Death” for Property; Identifying People

Key Term: speaks from death (section 24 Wills Act 1837)
A will is construed as if executed immediately before death in relation to the property comprised in it, unless a contrary intention appears.

Section 24 Wills Act 1837 means gifts of property are determined by what the testator owned at death (e.g., “my collection of cars” captures the collection at death), unless the will clearly fixes the gift to an earlier point (e.g., “the house which I now own”). This rule applies to property, not people. As a general rule, references to beneficiaries by description are construed at the time of execution, subject to any contrary intention. Familial descriptions follow ordinary meanings unless the will indicates otherwise. Adopted children are treated as children of their adoptive parents; children born as a result of assisted reproduction are treated in accordance with the Human Fertilisation and Embryology Act 2008. Gender recognition achieved under the Gender Recognition Act 2004 may affect descriptions in wills made on or after 4 April 2005.

Worked Example 1.3

A gift to “Kate’s eldest daughter” is made in a will. At execution, Kate’s eldest daughter is Emily; Emily later dies before the testator. Does the gift pass to Jenny, Kate’s younger daughter, or fail?

Answer:
The description “Kate’s eldest daughter” is normally applied at the date of execution, so the gift is to Emily. If Emily predeceases and no contrary intention appears (e.g., a substitutional provision), the gift fails, subject to anti‑lapse if the relationship qualifies.

Key Term: anti‑lapse (section 33 Wills Act 1837)
A statutory rule passing certain gifts to the issue of a deceased beneficiary who is a child or other direct descendant of the testator, unless a contrary intention appears.

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. The contrary intention may be express (e.g., “if she shall survive me”) or arise from terms inconsistent with substitution.

Worked Example 1.4

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.

Key Term: disclaimer
A beneficiary’s refusal of a gift. Disclaimer causes the gift to pass as if the beneficiary had predeceased, subject to statutory rules and the will’s terms; partial disclaimer of a single gift is generally not possible.

A beneficiary may disclaim a gift. Unless the will provides otherwise, disclaiming a non‑residuary gift causes the property to fall into residue; disclaiming a residuary gift results in distribution under the intestacy rules or to other class members, as appropriate. Where a child of the testator disclaims, legislation treats the child as having predeceased so that their issue may take in substitution where section 33 applies. Timing and formality matter in practice: acceptance of benefit may preclude disclaimer.

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., a company reorganisation converting shares), the gift may still take effect—courts examine whether the substituted asset is the “same” in substance.
• If the subject matter is replaced with a different asset without traceable continuity, ademption usually occurs.

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 sale proceeds, unless the will indicates otherwise. This preserves the intended gift where the donor could not manage their affairs and did not personally alter their testamentary scheme. Attorneys and deputies should keep clear records to support tracing into substitute property or proceeds.

Worked Example 1.5

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

Only specific gifts are subject to ademption. General pecuniary legacies (e.g., “£10,000 to X”) are not adeemed if one fund is insufficient; demonstrative legacies are paid from other assets if the specified fund lacks enough.

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.

Key Term: divorce/dissolution (section 18A Wills Act 1837)
On divorce/dissolution, any gifts to and appointments of the former spouse or civil partner take effect as if the former spouse/civil partner had died before the testator, unless the will provides otherwise.

• Forfeiture: A beneficiary who unlawfully kills the testator is treated as having predeceased the testator.

Key Term: forfeiture
The rule preventing a killer from profiting from their crime; applicable to wills and intestacy. Relief may be available under the Forfeiture Act 1982 in limited cases (never for murder), subject to strict time limits.

Worked Example 1.6

A testator leaves “£50,000 to my husband.” The couple later divorce. The testator makes no new will and dies. Does the husband take?

Answer:
No. Section 18A Wills Act 1837 treats the former spouse as having predeceased the testator for the purposes of gifts and appointments, unless the will clearly provides otherwise. The legacy fails.

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.
• Section 21 Administration of Justice Act 1982 permits extrinsic evidence (including intention) where language is ambiguous or meaningless; it modifies the traditional rule for patent ambiguities.
• Rectification under section 20 Administration of Justice Act 1982 is available only for clerical errors or failure to understand instructions; it is distinct from interpretation.
• Section 24 Wills Act 1837 means a will “speaks from death” for property; identifying people by description is generally from execution unless a contrary intention appears.
• A gift lapses if the beneficiary predeceses the testator, unless section 33 Wills Act 1837 (anti‑lapse) 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 during incapacity and changes in form not substance.
• Disclaimers cause gifts to pass as if the beneficiary predeceased; partial disclaimer of a single gift is generally ineffective.
• Divorce/dissolution under section 18A Wills Act 1837 and the forfeiture rule can cause gifts to fail, subject to limited statutory relief.

Key Terms and Concepts

• testator’s intention
• armchair principle
• patent ambiguity
• latent ambiguity
• rectification
• speaks from death (section 24 Wills Act 1837)
• lapse
• anti‑lapse (section 33 Wills Act 1837)
• ademption
• disclaimer
• divorce/dissolution (section 18A Wills Act 1837)
• forfeiture