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

Learning Outcomes

This article explains the core rules and statutory provisions governing the interpretation of wills and failure of gifts for SQE1 FLK2. It sets out how courts apply the Golden Rule and the armchair principle, distinguish patent from latent ambiguity, and control the use of extrinsic evidence, including under s.21 Administration of Justice Act 1982. It details when a will speaks from death as to property and from execution as to people, the effect of codicils republishing a will, and the differences between specific, general, demonstrative and residuary gifts. It explains the main causes of failure—ademption, lapse, uncertainty, simultaneous death, divorce or dissolution, witnessing by a beneficiary, forfeiture and disclaimers—and how s.33 Wills Act 1837 and s.184 Law of Property Act 1925 operate to save or redirect gifts. It analyses joint gifts, class gifts and substitution clauses, and the interaction of lapse rules with issue of the testator. It also introduces rectification under s.20 AJA 1982 and highlights practical drafting strategies that minimise the risk of failed gifts and ensure the estate is distributed in accordance with the testator’s intended scheme.

SQE1 Syllabus

For SQE1, you are required to understand the interpretation of wills and the circumstances in which gifts may fail, with a focus on the following syllabus points:

• 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
• s.21 Administration of Justice Act 1982 (statutory admissibility of extrinsic evidence) and the armchair principle
• the rule that a will speaks from death as to property (subject to contrary intention) and speaks from execution as to people, and the effect of codicils republishing a will
• s.33 Wills Act 1837 (saving gifts to issue), gifts to joint tenants vs tenants in common, and s.184 Law of Property Act 1925 (simultaneous death)
• other causes of failure (e.g. witnessing by a beneficiary or their spouse, divorce/dissolution, forfeiture, disclaimers), and robust drafting techniques to avoid them
• rectification under s.20 AJA 1982 (clerical error or failure to understand instructions) and construction principles

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 Golden Rule of will interpretation, and how does it guide the court?
2. When can extrinsic evidence be admitted to resolve ambiguity in a will?
3. What is ademption, and to which type of gift does it apply?
4. 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. It is critical to know when a will “speaks” as to property and as to people, the limits on the use of extrinsic evidence, and the mechanics of statutory saving provisions and rectification.

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. The court will not rewrite the will but will construe its language to avoid absurdity or inconsistency where possible.

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.

Do not confuse this interpretative Golden Rule with the professional practice “golden rule” (Kenward v Adams) relating to obtaining medical evidence of capacity when drafting a will for an elderly or ill client. The latter is a practice safeguard; the former is a construction principle.

The court approaches construction as an overall task: it reads the instrument as a whole, gives words their ordinary meaning, and prefers a construction that fits consistently with the scheme of the will. Where necessary, the court may imply terms to give business efficacy to the dispositions (for example, implying a reasonable closing date in class gifts) but will not add new substantive gifts by implication.

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.

The court may consider the testator’s family structure, assets, and relationships, and the ordinary meaning of terms in that context. While the armchair principle guides construction, it does not freely admit all extrinsic material: the admissibility of evidence of surrounding circumstances is controlled by common law categories (latent ambiguity, misdescription) and by s.21 Administration of Justice Act 1982. Declarations of subjective intention are not admissible to contradict clear wording, but may be admissible to resolve ambiguity under s.21 in defined situations.

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. Section 21 AJA 1982 relaxes this in certain cases (see below).
• Latent ambiguity: Extrinsic evidence may be admitted to clarify the testator’s intention, including evidence of surrounding circumstances to identify the person or property described.

A common latent ambiguity is equivocation—where a description equally fits more than one person or item (e.g. two nephews named Alex, or two houses). In cases of misdescription (some particulars true, some false), the court may apply the armchair principle and admit evidence to correct the description.

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 (including evidence of the testator’s intention) 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.

This provision gives the court wider latitude to consider contextual material beyond the traditional common law categories. It does not license wholesale reconstruction of clear gifts; it is engaged to clarify meaning where the words cannot be given a definite application without additional evidence.

Date from which the will speaks

Subject to a contrary intention in the will, a will “speaks” as follows:

• As regards property (and descriptions capable of increase or decrease), a will speaks from the date of death. Section 24 Wills Act 1837 provides that a devise or bequest takes effect as if the will were executed immediately before death. Words such as “now” or “at present” may indicate a contrary intention (fixing the gift to assets at execution).
• As regards people (beneficiaries described by status, e.g., “my eldest son”), a will speaks from the date of execution, subject to class closing rules and republication by a codicil. Executing a codicil republishes the will, so the will is treated as made at the codicil’s date for these purposes.

This distinction often matters for ademption and for identifying class members.

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.

Worked Example 1.2

A 2016 will leaves “my jewellery” to Nilu. The testator’s jewellery is stolen in 2022, and she buys replacement items before her death in 2024. Does Nilu take the replacement items?

Answer:
Yes. “My jewellery” is a description capable of increase and decrease, so the will speaks from death as to property. Nilu takes the jewellery the testator owns at death. By contrast, a specific gift of “my pearl necklace” would normally be treated as referring to the item owned at execution; a replacement necklace would not pass unless the will (or a republishing codicil) indicates a contrary intention.

Worked Example 1.3

A will leaves “to the eldest son of X” a pecuniary legacy. X’s eldest son at the date of the will later dies, and a younger son becomes the eldest surviving son at the testator’s death. Who takes?

Answer:
As regards people, the will speaks from the date of execution. The person fulfilling the description when the will was made (the then-eldest son) is the intended object. If that person has predeceased the testator, the gift lapses unless saved by a substitution clause or by s.33 Wills Act 1837 (which applies only to gifts to issue of the testator, not to X’s child unless X is the testator).

Failure of Gifts in Wills

Gifts in wills can fail for several reasons. The main types of failure are ademption, lapse, and uncertainty. Other important causes include witnessing by a beneficiary or their spouse, divorce/dissolution affecting gifts to a former spouse or civil partner, forfeiture for unlawful killing, simultaneous death issues, disclaimers, and failure of conditions.

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” or “my house at 12 Oak Road”). If the item has been sold, lost, destroyed, or replaced with a materially different item before death, the beneficiary receives nothing. General legacies (“a BMW car”) are not adeemed; if the estate contains no such item at death, executors must satisfy the gift from the estate (e.g., by purchasing a BMW if funds permit). A demonstrative legacy (e.g., “£1,000 to be paid from my ABC Bank savings account”) is treated as specific as to the fund named but general as to any shortfall: if the named fund is insufficient or absent at death, the legacy is met from other estate assets.

A codicil republishes the will and may change the reference date for specific gifts. If the testator had replaced a specific item after the will but before executing a codicil, the will is read as if executed at the codicil date, which can avoid ademption.

Worked Example 1.4

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.

Worked Example 1.5

A will leaves “£30,000 to my daughter, to be paid from my Nationwide savings account.” At death, the account holds £5,000; another bank account holds £10,000, and residue is £10,000. How is the gift satisfied?

Answer:
This is a demonstrative legacy. The executors pay £5,000 from the named account and meet any shortfall from other estate assets (including other accounts and residue), prioritising the demonstrative gift before residue. If the estate funds are sufficient, the daughter receives the full £30,000.

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 predeceses 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 (a contrary intention disapplies s.33). Lapse rules interact with class gifts and joint gifts:

• A gift to joint tenants does not lapse unless all joint donees predecease the testator; the survivor(s) take the whole.
• A gift with words of severance (“in equal shares”) is to tenants in common: if A predeceases, A’s share lapses (subject to s.33 if A is the testator’s issue).
• A class gift (e.g., “to my children”) will not lapse unless all class members predecease the testator; membership is determined by class closing rules and any expressed closing date.

Simultaneous death or uncertain order of death is resolved by s.184 Law of Property Act 1925: the elder is deemed to have died first.

Disclaimers by a beneficiary are treated as if the beneficiary had predeceased the testator, which may engage s.33 (for gifts to issue) or cause the gift to fall into residue.

Worked Example 1.6

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.

Worked Example 1.7

A will leaves “my residuary estate to A and B in equal shares.” A dies before the testator; B survives. How is residue distributed?

Answer:
The gift is to tenants in common (“in equal shares”). A’s one-half share lapses; unless saved by a substitution clause or s.33 (which applies only if A is issue of the testator), that half falls into intestacy or passes under any gift-over. B takes only their one-half.

Worked Example 1.8

The testator and beneficiary die in a common accident, and the order of death cannot be proved. The testator is older than the beneficiary. What is the effect on a gift to the beneficiary?

Answer:
Section 184 LPA 1925 deems the older to have died first. The beneficiary is deemed to have survived the testator, so the gift takes effect and the property then passes as part of the beneficiary’s estate.

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. The court will attempt to resolve uncertainty using construction principles and admissible extrinsic evidence (including s.21 AJA 1982) to identify a person or property. If the court cannot identify the intended object, the gift fails and falls into residue (or intestacy if residue is not disposed of).

Worked Example 1.9

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.

Other important causes of failure

• Witnessing by a beneficiary or their spouse or civil partner: s.15 Wills Act 1837 does not invalidate the will but renders the gift to that beneficiary void. Consider substitution and s.33 where appropriate.
• Divorce, dissolution, or annulment: by s.18A Wills Act 1837, gifts to, and appointments of, the former spouse or civil partner are revoked; the remainder of the will stands.
• Forfeiture: a person who unlawfully kills the deceased is barred from taking under the will or by survivorship. Limited relief may be available under the Forfeiture Act 1982 (not for murder).
• Conditions: gifts subject to conditions may fail if the condition is not satisfied.
• Illegal or immoral purposes: a gift for such a purpose may fail.

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, especially to issue and residuary beneficiaries, and considering survivorship clauses (e.g., beneficiary must survive by 28 days).
• Using class gifts carefully, with a stated closing date (e.g., “to my children living at my death”) and an express definition of the class.
• Using demonstrative legacies for pecuniary gifts tied to a fund, and providing for shortfalls.
• Ensuring a comprehensive residuary clause to catch any property not otherwise disposed of.
• Anticipating ademption by drafting “proceeds” gifts (e.g., “the net proceeds of sale of my house” or including replacement items by description where appropriate) and noting that codicils republish the will.
• For gifts to or concerning charities, include precise identification, a receipts clause, and provisions for amalgamation or name change.
• Addressing debts and burdens explicitly (e.g., “free of mortgage” or directing from residue) to avoid default rules defeating the testator’s plan.

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.

Rectification is available where the will fails to carry out the testator’s intentions because of:

• a clerical error; or
• a failure to understand the testator’s instructions.

Applications should normally be made within six months from the date of the grant of representation, though the court has discretion to extend. Evidence of instructions and drafting (attendance notes, drafts) is often critical.

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.

Construction is distinct from rectification. On construction, the court applies the ordinary meaning of words, the scheme of the will, and admissible extrinsic evidence under s.21 where appropriate. It may imply terms if necessary for coherent operation (e.g., reasonable class closing dates) but will not depart from the expressed scheme to achieve perceived fairness. Where alterations are made after execution, s.21 Wills Act 1837 governs their validity: unsigned and unwitnessed post‑execution changes are generally ineffective unless the original wording is obliterated beyond recovery (which may revoke that part), or the alteration is properly executed like a will (signed and attested).

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, and how s.21 AJA 1982 modifies the position. Do not confuse the interpretative Golden Rule with the capacity-related “golden rule” for practitioners. Remember that a will speaks from death as to property and from execution as to people, subject to contrary intention and republication by codicil.

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 (s.21 AJA 1982).
• A will speaks from death as to property and from execution as to people, subject to contrary intention and codicil republication.
• Ademption causes specific gifts to fail if the item is not in the estate at death; general and demonstrative legacies are treated differently.
• Lapse occurs if the beneficiary dies before the testator, subject to statutory exceptions (s.33 WA 1837) and drafting of substitutions; consider joint vs severable gifts and class gifts.
• Simultaneous death is resolved by s.184 LPA 1925; the elder is deemed to have died first.
• Uncertainty in the description of property or beneficiary can cause a gift to fail; courts use construction and admissible evidence to rescue where possible.
• Other failure causes include witnessing by a beneficiary (s.15 WA 1837), divorce/dissolution (s.18A WA 1837), forfeiture, conditions, and disclaimers.
• Rectification and construction allow the court to correct or interpret a will to reflect the testator’s true intentions (s.20 AJA 1982 for rectification).
• Careful drafting, substitution clauses, survivorship provisions, demonstrative legacies, and a robust residuary gift 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)