The construction of a Will can alter the date from which a Will 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 and, to a certain degree, the classification of legacies as specific or general.
When does a will speak?
The normal situation is that a Will speaks from the date of death when it identifies or describes property and from the date when it was made when identifying the object of a gift i.e. the person to receive it. In simple terms a gift of “my shares in XYZ to my cleaner” will be a gift of the shares in XYZ owned at the date of death to the person who was the cleaner at the time the Will was made.
Before the Wills Act 1837 only property that was owned by the testator at the time of writing his Will could be left under the Will. This meant that a gift of a piece of land to a daughter, where the land was subsequently sold and a different piece purchased, would not pass under the terms of the Will but would pass to a son and heir instead. The wording of the Wills Act removes this problem by stipulating that ‘Every Will should be construed 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’.
It is not always straightforward in deciding whether a contrary intention appears in the Will though it is essential to establish this when considering whether a gift has been adeemed. For example, a gift of ‘my diamond necklace’ will cause no issues if the same necklace is owned at the date of the Will and at the date of death. There will also be no issue if no such necklace is owned at the date of death as the gift will clearly adeem.
The problem occurs when a diamond necklace is owned at the date of death but it is a different one from that which was owned when the Will was written. Where there is no contrary intention s24 will save the gift whereas, if a contrary intention appears within the Will, the gift will adeem as the original necklace to which the Will refers is no longer owned by the testator. A contrary intention can be shown by reference within the Will to the ‘present’ time (being the time the Will was made) or a specific description of the item which would distinguish it from any other.
Exceptions
Section 24 applies with regard to the subject matter of the gift but not to the recipient. This means that the Will speaks from its date in relation to the person receiving a gift and therefore refers to the person in existence at the date of the Will.
See for example 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. If a later codicil is executed this will reconfirm the contents of the Will and therefore the property subject to a gift will then speak from the date of the codicil where s24 does not apply (due to a contrary intention in the Will). Likewise a subsequently executed codicil will mean that the object of the gift (the recipient) will speak from the date of the codicil.
