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Establishing entitlement under a will, Failure of gifts - Coggle Diagram

- - - - if the word 'my' is used ie 'my house' may refer to house testator owned at date of will. However, if asset concerned is generic in that it is capable of increase/ decrease between date of will and date of death, eg 'my collection of cars', then will be taken to mean cars in the collection at the date of death
- - - - family relationships = taken to refer to blood relationship. However, rule will not apply if the will provides otherwise ie. if they said 'my issue' may refer to step-children also.
        
        Adopted children= normally treated as children of the adoptive parents, although will may provide otherwise. if a child is adopted before their interest in an estate becomes vested, interest is unaffected by adopttion.
        
        an individual who has obtained a full gender recognition certificate from the Gender Recognition Panel= legally recognised in their acquired gender. Does not effect disposal of property made before 4th April 2005. However, does effect wills after that date. Application can be made to HC where expectations have been defeated.
- - - - Divorce > 'any property which, or an interest in which, is devised or bequeathed to former spouuse chall pass if the former spouse or civil partner had died' - if they simply live apart, gift and appointment remain valid
        
        A specific legacy (ie a gift of particular property) will fail if testator no longer owns that at their death. gift is said to be adeemed.
        NOTE if property is capable of increase/ decrease, testator will normally be taken to have made a gift of any itsems satisfying the description at death.
        NOTE EFFECT OF CODICIL: codicil is a supplement to a will which, to be valid, must be executed in same way as a will. it republishes will as at date of codicil. so, if a testator makes a will in 1990 leaving 'my gold watch' to a legatee, loses the watch in 2000 and replaces it, the gift of the watch in will is adeemed. if, however, the testator executes a codicil to the will in 2003, the will is read as if it had been executed in 2003 and so legatee will take the replacement watch.
- - - - if gift is to testator's children or other direct descendants, unless a contrary intention is shown in will s33 WA 1827 has the effect that it incorporates an implied substitution provision into such gifts. it provides that where a will contains a gift to the testator's child or remoter descendant and that B dies before the testator, leaving issue of the their own who survive the testator, the gift does not lapse but passes instead to the B issue. note- does not apply where contrary intention is shown.