WillsWhen does a Will ‘speak’ from?

3rd July 2020Siobhan Smith0
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The construction of a will can alter the date from which it ‘speaks’. This is an important factor in interpreting the will as a small change in the wording of a will can change the way ademption applies. So, we need to know what the ordinary rules are concerning when a will speaks from.

The rules differ depending on whether we are talking about subject matter (assets) or objects (beneficiaries).

 

Subject Matter

When talking about assets the will speaks from death. Section 24 of the Wills Act 1837 provides that:

“24. Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”

A gift in a will of ‘all my vinyl records’ would therefore include any records the testator owned at the time the will was executed, and all after-acquired records that they own at their death.

So why is this important? Firstly, this means that the subject of a wide specific legacy like the example above is susceptible to increasing or decreasing between the date of the will and the date of death. A good argument for keeping a will under review.

Secondly, if this doesn’t match the testator’s intention then we know we need to word the gift differently to do something about it. Section 24 applies subject to any contrary intention, so it’s possible to word a gift in such a way that the will speaks from the date of its execution instead of from death.

 

Objects

When it comes to defining beneficiaries, the will speaks from the date of its execution unless there is any contrary intention, so be aware of this when referring to individual beneficiaries by only their relationship to the testator. This rule does not apply to class gifts, where the members of the class are ascertained at death (or in some cases between the testator’s death and when the class closes, but class closing rules are a different matter).

Of course, this rule doesn’t apply to beneficiaries who are identified by name so it should only be in rare circumstances that this rule causes any problems!

A gift made to a person identified by description takes effect as a gift to the person that met that description at the time the will was executed, not at the time of the death.  In simple terms a gift “to my cleaner” will be a gift to the person who was the cleaner at the time the Will was made.

If at the time the will was executed there was no one who met that description then the gift goes to the first person after execution who meets that description, or otherwise lapses. So if a gift is made “to my daughter’s husband” but at the time the will is executed the daughter is unmarried the first person to come along and meet that description is the beneficiary. Again though this presumption can be budged with contrary intention so that the will would speak from death instead, for example “to my daughter’s husband at the time of my death”.

For a case example of this see Peasley v Hallingbury [2001] which left a right of occupation to a great niece and ‘her husband’. This was construed to mean the husband of the great niece at the time the Will was made and not her husband at the date of death – obviously very unfortunate for that husband!

If a later codicil is executed this will reconfirm the contents of the will and ‘republishes’ it. This will mean that the will speaks from the date of the codicil instead when referring to the beneficiary.

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

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