Learning Outcomes
After reading this article, you will be able to identify and apply the legal principles governing the interpretation of wills, the main reasons for failure of testamentary gifts (including lapse and ademption), and the statutory remedy of rectification under s.20 Administration of Justice Act 1982. You will be able to distinguish between interpretation and rectification, and explain when and how courts may correct a will that fails to reflect the testator’s intentions.
SQE1 Syllabus
For SQE1, you are required to understand the rules and practical implications of interpreting wills, the circumstances in which gifts under a will may fail, and the statutory remedy of rectification. In your revision, focus on:
- the principles and process of interpreting wills, including the use of extrinsic evidence and the approach to ambiguity
- the main causes of failure of testamentary gifts, including lapse and ademption, and the statutory exception for gifts to issue
- the legal requirements and limitations for rectification of wills under s.20 Administration of Justice Act 1982
- how to apply these rules to fact patterns and identify when rectification or interpretation is the appropriate remedy
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 difference between a patent and a latent ambiguity in a will, and how may each be resolved?
- What is ademption, and which types of gifts does it affect?
- Under what circumstances can a court rectify a will under s.20 Administration of Justice Act 1982?
- What is the statutory exception to the rule of lapse for gifts to children or remoter issue?
Introduction
When a will is admitted to probate, the court must determine the meaning and effect of its provisions. Sometimes, gifts in a will fail because of events before the testator’s death or because the will does not accurately reflect the testator’s instructions. This article explains the legal rules for interpreting wills, the main reasons why gifts may fail, and the statutory remedy of rectification.
Principles of Will Interpretation
The primary aim in interpreting a will is to give effect to the testator’s intentions as expressed in the will. The court applies the ordinary meaning of the words, considering the will as a whole and the circumstances known to the testator at the time of execution.
Key Term: interpretation of wills The process by which the court determines the meaning of a will, aiming to give effect to the testator’s intentions as expressed in the document.
Ambiguity and Extrinsic Evidence
Ambiguities in a will are classified as either patent (obvious on the face of the will) or latent (arising only when applying the will to the facts). The general rule is that the court will not admit extrinsic evidence to alter the plain meaning of a will. However, if the language is ambiguous or meaningless, or if there is a latent ambiguity, extrinsic evidence—including evidence of the testator’s intention—may be admitted to resolve the uncertainty.
Key Term: patent ambiguity An ambiguity apparent from the wording of the will itself.
Key Term: latent ambiguity An ambiguity that arises only when applying the will to the facts, such as where two people fit a description in the will.
The Modern Approach
The courts now adopt a purposive approach to interpretation, considering the will in its context and, where necessary, admitting evidence of the testator’s circumstances and knowledge. The Supreme Court in Marley v Rawlings [2014] UKSC 2 confirmed that the principles for interpreting wills are the same as for contracts: the court seeks the meaning the document would convey to a reasonable person with the testator’s knowledge.
Worked Example 1.1
A will leaves "my car" to a friend. At the time of the will, the testator owns a red Ford. Before death, the testator sells the Ford and buys a blue BMW. Which car passes under the will?
Answer: Unless the will shows a contrary intention, the gift is of the car owned at death. The friend receives the BMW.
Failure of Gifts: Lapse and Ademption
Gifts in a will may fail for several reasons. The two most common are lapse and ademption.
Lapse
A gift lapses if the beneficiary dies before the testator. The property falls into residue, or if there is no residuary gift, passes under intestacy. There is a statutory exception for gifts to children or remoter issue.
Key Term: lapse The failure of a testamentary gift because the beneficiary predeceased the testator.
Key Term: statutory substitution (s.33 Wills Act 1837) If a testator’s child or remoter descendant is given a gift but dies before the testator leaving issue, the issue take the gift unless the will shows a contrary intention.
Worked Example 1.2
A will leaves £10,000 to the testator’s son, who dies before the testator, leaving two children. What happens to the gift?
Answer: Under s.33 Wills Act 1837, the son’s children take the £10,000 equally, unless the will indicates otherwise.
Ademption
Ademption occurs when a specific gift is no longer part of the testator’s estate at death. This usually happens because the testator has disposed of the item during their lifetime.
Key Term: ademption The failure of a specific gift because the subject matter is not part of the testator’s estate at death.
Worked Example 1.3
A will leaves "my gold watch" to a friend. The testator sells the watch before death. What does the friend receive?
Answer: The gift adeems. The friend receives nothing.
Exam Warning
Ademption applies only to specific gifts. General legacies (such as a sum of money) do not adeem, even if the testator’s cash is insufficient at death.
Rectification of Wills
Sometimes, a will as drafted fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions. In such cases, the court may rectify the will under s.20 Administration of Justice Act 1982.
Key Term: rectification of wills The statutory power of the court to order that a will be corrected so it reflects the testator’s true intentions, where the will fails to do so due to a clerical error or a failure to understand instructions.
Requirements for Rectification
The court may rectify a will if satisfied that:
- the will fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions; and
- there is clear evidence of the testator’s actual instructions.
The application must normally be made within six months of the grant of probate, but the court may allow late applications.
Worked Example 1.4
A testator instructs their solicitor to leave £5,000 to "my niece, Sarah Brown." The will, due to a clerical error, leaves £5,000 to "my nephew, Simon Brown." Can the will be rectified?
Answer: If there is clear evidence of the testator’s instructions, the court may rectify the will to substitute "Sarah Brown" for "Simon Brown."
Limitations of Rectification
Rectification is not available to correct a will that is invalid for failure to comply with formalities, nor to rewrite a will simply because the testator changed their mind after execution. The court will not rectify a will to give effect to intentions not communicated to the drafter.
Revision Tip
Rectification is only available for errors in the will’s wording, not for mistakes in the testator’s understanding of the law or the effect of the will.
Key Point Checklist
This article has covered the following key knowledge points:
- The court’s aim in interpreting a will is to give effect to the testator’s intentions as expressed in the will.
- Ambiguities may be resolved using extrinsic evidence if the will is ambiguous or meaningless, or if there is a latent ambiguity.
- Gifts may fail by lapse (if the beneficiary dies before the testator) or by ademption (if a specific gift is not in the estate at death).
- Section 33 Wills Act 1837 provides a statutory exception to lapse for gifts to children or remoter issue.
- Rectification under s.20 Administration of Justice Act 1982 allows the court to correct a will that fails to reflect the testator’s instructions due to a clerical error or a failure to understand instructions.
Key Terms and Concepts
- interpretation of wills
- patent ambiguity
- latent ambiguity
- lapse
- statutory substitution (s.33 Wills Act 1837)
- ademption
- rectification of wills
