Learning Outcomes
After studying this article, you will be able to explain the main principles used by courts to interpret wills, identify when and how extrinsic evidence may be used, and recognise the key reasons why gifts in wills may fail. You will also be able to apply these principles to typical SQE1 scenarios involving ambiguity, ademption, lapse, and uncertainty, and advise on practical drafting strategies to reduce the risk of failed gifts.
SQE1 Syllabus
For SQE1, you are required to understand the interpretation of wills and the circumstances in which gifts may fail. In your revision, focus on:
- the main principles and rules used to interpret wills, including the Golden Rule and the use of extrinsic evidence
- the distinction between patent and latent ambiguity and the admissibility of evidence in each case
- the legal consequences of ademption, lapse, and uncertainty in testamentary gifts
- how to identify and advise on the risk of failed gifts and the importance of precise drafting
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.
- What is the Golden Rule of will interpretation, and how does it guide the court?
- When can extrinsic evidence be admitted to resolve ambiguity in a will?
- What is ademption, and to which type of gift does it apply?
- What happens if a beneficiary of a gift in a will dies before the testator and no substitution is provided?
Introduction
Interpreting a will means determining the testator’s intentions as expressed in the will’s wording. The law provides clear rules for resolving ambiguities and for dealing with situations where gifts fail. For SQE1, you must be able to apply these rules to practical scenarios and recognise the consequences of poor drafting.
Principles of Interpreting Wills
The Golden Rule
The starting point for interpreting any will is the Golden Rule: the court must give effect to the testator’s expressed intentions, as revealed by the words of the will, read in their ordinary meaning and in the context of the will as a whole.
Key Term: Golden Rule (will interpretation) The principle that the testator’s intention, as expressed in the will’s wording, governs interpretation unless the result is absurd or inconsistent with the will as a whole.
Context and the Armchair Principle
To understand the testator’s intention, the court may consider the circumstances known to the testator at the time the will was made. This is known as the Armchair Principle.
Key Term: Armchair Principle The court may place itself in the testator’s position, considering their property, family, and relationships, to resolve ambiguity in the will.
Ambiguity and Extrinsic Evidence
Ambiguity in a will can be patent (obvious on the face of the document) or latent (arises only when applying the will to the facts). The rules on admitting extrinsic evidence differ:
- Patent ambiguity: Traditionally, extrinsic evidence is not admissible; the ambiguity must be resolved from the will itself.
- Latent ambiguity: Extrinsic evidence may be admitted to clarify the testator’s intention.
Key Term: Extrinsic Evidence (wills) Evidence from outside the will, such as the testator’s circumstances or statements, used to resolve certain ambiguities.
Statutory Admissibility
Section 21 of the Administration of Justice Act 1982 allows extrinsic evidence to be admitted where:
- the will or part of it is meaningless,
- the language is ambiguous on its face,
- or evidence shows ambiguity in light of surrounding circumstances.
Worked Example 1.1
A will leaves “my house to my nephew, Alex.” The testator owns two houses at death. How will the court decide which house Alex inherits?
Answer: The court will apply the Golden Rule and the Armchair Principle, considering the testator’s circumstances and any admissible extrinsic evidence to determine which house was intended. If ambiguity remains, the gift may fail for uncertainty.
Failure of Gifts in Wills
Gifts in wills can fail for several reasons. The main types of failure are ademption, lapse, and uncertainty.
Ademption
Ademption occurs when a specific item gifted in the will is no longer part of the testator’s estate at death.
Key Term: Ademption The failure of a specific gift because the subject matter is not in the testator’s estate at death.
Ademption applies only to specific gifts (e.g., “my Rolex watch”). If the item has been sold, lost, or destroyed before death, the beneficiary receives nothing.
Worked Example 1.2
A will leaves “my blue BMW” to Sam. The testator sells the car before death and does not buy another. What does Sam receive?
Answer: The gift is adeemed. Sam receives nothing, as the specific item is not part of the estate at death.
Lapse
A gift lapses if the beneficiary dies before the testator, unless the will provides for a substitute or a statutory exception applies.
Key Term: Lapse The failure of a gift because the beneficiary predeceases the testator and no substitution applies.
Section 33 of the Wills Act 1837 provides that if the beneficiary is a child or remoter descendant of the testator and leaves issue who survive the testator, the gift passes to the issue unless the will states otherwise.
Worked Example 1.3
A will leaves “£5,000 to my daughter, Priya.” Priya dies before the testator, leaving two children. The will is silent on substitution. Who inherits the £5,000?
Answer: Under s.33 Wills Act 1837, Priya’s children inherit the £5,000 in equal shares, unless the will indicates a contrary intention.
Uncertainty
A gift may fail if it is too vague to be given effect.
Key Term: Uncertainty (wills) The failure of a gift because the subject matter or the intended beneficiary cannot be identified with certainty.
Examples include gifts to “my friends” or “some of my shares” without further clarification.
Worked Example 1.4
A will leaves “my favourite painting to my cousin.” The testator owns several paintings and has multiple cousins. What is the likely outcome?
Answer: If the court cannot identify the intended painting or cousin using the will and admissible evidence, the gift fails for uncertainty.
Drafting to Prevent Failure of Gifts
Precise drafting is essential to reduce the risk of failed gifts. Key strategies include:
- Clearly identifying both the property and the beneficiary.
- Including substitution clauses for key gifts.
- Using class gifts (e.g., “to my children who survive me”) where appropriate.
- Ensuring a comprehensive residuary clause to catch any property not otherwise disposed of.
Revision Tip
When reviewing a will, check that all gifts are clearly described and that there are fallback provisions for key beneficiaries.
Rectification and Construction
If a will does not reflect the testator’s true intentions due to a clerical error or misunderstanding, the court may rectify the will under s.20 Administration of Justice Act 1982. The court may also interpret ambiguous wording using construction principles.
Key Term: Rectification (wills) The court’s power to correct a will to reflect the testator’s true intentions where there was a clerical error or failure to understand instructions.
Key Term: Construction (wills) The process by which the court interprets the meaning of the words used in a will to give effect to the testator’s intention.
Exam Warning
For SQE1, be careful to distinguish between ademption (failure of a specific gift because the item is missing) and lapse (failure because the beneficiary has died). Also, remember that extrinsic evidence is not always admissible—know the difference between patent and latent ambiguity.
Key Point Checklist
This article has covered the following key knowledge points:
- The Golden Rule requires the court to give effect to the testator’s expressed intentions, using the ordinary meaning of the words.
- The Armchair Principle allows the court to consider the testator’s circumstances to resolve ambiguity.
- Extrinsic evidence may be admitted to resolve latent ambiguity or as permitted by statute.
- Ademption causes specific gifts to fail if the item is not in the estate at death.
- Lapse occurs if the beneficiary dies before the testator, subject to statutory exceptions.
- Uncertainty in the description of property or beneficiary can cause a gift to fail.
- Rectification and construction allow the court to correct or interpret a will to reflect the testator’s true intentions.
- Careful drafting and substitution clauses help prevent failed gifts.
Key Terms and Concepts
- Golden Rule (will interpretation)
- Armchair Principle
- Extrinsic Evidence (wills)
- Ademption
- Lapse
- Uncertainty (wills)
- Rectification (wills)
- Construction (wills)
