LAW OF SUCCESSION ACT, PART 5

PART VIII – MISCELLANEOUS

78. Sane murderer not to share in victim’s estate

• Notwithstanding any other provision of this Act, a person who, while sane, murders another person shall not be entitled directly or indirectly to any share in the estate of the murdered person, and the persons beneficially entitled to shares in the estate of the murdered person shall be ascertained as though the murderer had died immediately before the murdered person.
• For the purpose of this section the conviction of a person in criminal proceedings of the crime of murder shall be sufficient evidence of the fact that the person so convicted committed the murder.

79. Rules

The Rules Committee may make rules of procedure generally for the carrying out of the purposes and provisions of this Act, and without prejudice to the foregoing generality, any such rules of procedure may prescribe—

• the procedure to be followed by a court in determining applications under section 26 or subsection (3) of section 35;
• the procedure to be followed by a court in granting probate or letters of administration;
• the procedure to be followed in the case of a dispute as to a grant;
• the form and manner in which applications under section 26 and subsection (3) of section 35 and applications for grants are to be made, grants are to be issued, grants are to be limited, notices are to be given, or inventories or accounts are to be produced;
• the fees to be paid on any application or grant, or on any other procedure related thereto.

80. Transitional

All proceedings commenced under any written law or part thereof repealed by this Act shall, so far as practicable be continued under this Act.

81. Repeal

The laws set out in the Eighth Schedule are repealed.

82. Amendments

The Acts set out in the first column of the Ninth Schedule are amended, in relation to the provisions thereof specified in the second column of that Schedule, in the manner specified in relation thereto in the third column of that Schedule.

83. Saving

Except as otherwise expressly provided in this Act, nothing in this Act therein shall affect the provisions of—

• the Trustee Act (Cap. 167);
• the Public Trustee Act (Cap. 168);
• the Trusts of Land Act (Cap. 290);
• sections 218 to 222 of the Armed Forces Act (Cap. 199) concerning estates of deceased soldiers.

FIRST SCHEDULE

[Section 22, Act No. 8 of 1976, ss. 16 and 17.]

CONSTRUCTION OF WILLS

General Rules

1. Wording of will

It is not necessary, in order to give effect to any disposition, that any technical words be used in a will, but only that the wording be such that the intention of the testator can be known therefrom.

2. Meaning of clause to be collected from entire will

The meaning of any clause in a will is to be ascertained from the entire instrument, and all the provisions of the will are to be construed with reference to each other; but where two clauses or provisions are irreconcilable, so that they cannot possibly stand together, the last shall prevail.

3. Will speaks from death as to property comprised in it

Every will shall be construed, with reference to the property 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 appears by the will:

Provided that, in respect of the subject of a specific legacy, there shall be a presumption that the will speaks as at the date of its actual execution.

4. Negative words insufficient to exclude person entitled on intestacy

Merely negative words in a will shall not be sufficient to exclude a person entitled on intestacy and in order to effect such an exclusion there must be an actual gift to some other definite object.

5. Express gift cannot be controlled by reason assigned, etc.

Subject to the provisions of paragraph 2, an express and positive gift cannot be controlled by reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will, and is not affected by a subsequent inaccurate recital of, or reference to, its contents:

Provided that, in cases of ambiguity or doubt, recourse may be had to such reference in order to assist the construction.

6. Implication admissible only in absence of express disposition

Implication shall be admissible only in the absence of an express disposition, and shall not be admissible to control an express disposition.

7. Words may be supplied, rejected, etc.

Words and limitations contained in a will may be transposed, supplied or rejected, where such a course is warranted by the immediate context or the general scheme of the will, but not merely on a conjectural hypothesis of the testator’s intention, and obvious clerical errors may be corrected.

8. Technical words

Technical words shall be presumed to be employed in their technical sense, unless the context clearly indicates the contrary.

9. Words in general

Words in general shall be construed in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected from the will and that other sense can be ascertained.

10. Words occurring more than once

Words occurring more than once in a will shall be presumed to be used always in the same sense unless the context clearly indicates the contrary or unless the words are applied to different subjects.

11. Additional words

Where a testator uses an additional word or phrase, an additional meaning shall be presumed unless the context clearly indicates the contrary.

12. Words construed so as to make them operative

When a clause or disposition is capable of two meanings, according to one which it has some effect, and according to the other of which it can have no effect, the former shall be preferred.

13. Intention to be given effect to

Where for any reason effect cannot be given completely to the testator’s apparent intention, effect shall nevertheless be given thereto so far as is possible.

14. Rules of construction not to be strained to validate gift

The rules of construction shall not be strained in order to bring a gift within the rules of law, but, where the will admits of two constructions, the construction which will render the gift valid shall be preferred:

Provided that where a gift, valid in the first instance, is modified by some subsequent clause in the same will or in a codicil thereto in such manner as to render the preceding gift void for remoteness, the modifying clause, if separable from the original gift, shall be rejected as if such will or codicil had never contained the same.

15. Inconvenience or absurdity of gift

The inconvenience or absurdity of a gift, or the fact that the testator did not foresee all the consequences of his disposition, shall not be a ground for varying the construction of the will where the terms are unambiguous; but, where the terms of any gift or disposition are ambiguous, the more rational of two constructions shall be preferred.

16. Construction not to be varied by subsequent events

The construction of a will shall not be varied by events subsequent to its execution, but in determining the meaning of particular expressions regard may be had to circumstances which, at the date of execution, were capable of arising subsequent to that date.

17. Presumption against intestacy

A testator shall be presumed to calculate against intestacy, and, subject to the provisions of paragraph 14, a construction avoiding intestacy shall be preferred.

18. Presumption as regards gift over

A testator shall be presumed to calculate on the dispositions in his will taking effect; and a gift over shall not, in the absence of clear intention, be construed as providing exclusively for lapse or other initial failure of the original gift.

19. Independent gifts

Unless a design to connect them appears from the will, independent gifts shall be construed separately and without relation to one another, notwithstanding that it may be conjectured from the circumstances that the testator had the same intention with regard to all such gifts.

20. References to child, etc., to include illegitimate child, etc.

Unless a contrary intention appears from the will, the terms “child”, “son”, “daughter”, “grandchild”, and “issue” and similar words shall be construed in accordance with the definition of “child” in subsection (2) and with the provisions of subsection (3) of section 3 of this Act.

[Act No. 8 of 1976, s. 16.]

21. References to application of Islamic law to mean law of sect or school of testator

Unless a contrary intention appears from the will, where a testator declares that his property shall devolve according to Islamic law, the Islamic law applicable shall be the law of the sect or school of Islamic law to which the deceased belonged.

22. Particular rules of construction

The several particular rules of construction provided by the following paragraphs shall apply if, and so far only, as a contrary intention is not expressed or implied in the will, and shall have effect subject to the terms of the will.

Descriptions

23. Misnomer or misdescription of object

• Where the words used in a will to designate or describe a legatee, or a class of legatees, sufficiently show what is meant, an error in the name of description shall not prevent the legacy from taking effect, and it shall be sufficient for this purpose if the legatee, or class of legatees, is so designated as to be distinguished from every other person or class.
• A mistake in the name of a legatee may be corrected by a description of that legatee and a mistake in the description of a legatee may be corrected by the name of that legatee.
• Where the words used in a will to designate or describe a legatee are applicable to two or more persons or classes of persons, or partly to one and partly to another person or class, the legatee or class of legatees may be ascertained from the general context and the surrounding circumstances.

24. Rejection of erroneous particulars in description of subjects

If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the gift shall take effect:

Provided that, if a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there was any property in respect of which all those circumstances existed at the date of execution of the will, the gift shall be considered as limited to that property, and no part of the description shall be rejected as erroneous because the testator had at the date of his death other property to which that part of the description does not apply.

25. Gift or disposition void for uncertainty

A gift or disposition not expressive of any definite intention shall be void for uncertainty:

Provided that—

• no gift for charitable purposes shall be void for uncertainty of the object; or
• no gift whereby the legatee is expressly or impliedly given a right of selection, purchase or disposition shall be void merely by reason of the uncertainty arising from such right.

26. Gift presumed to comprise whole interest of testator

Where property is bequeathed to any person, the gift shall be presumed to comprise the whole interest of the testator in such property, unless it appears from the will that only a restricted interest was intended for him.

27. Construction of bequest which refers to person as existing

The object of a gift which refers to a person or persons as existing shall be construed as at the date of the will, unless a contrary intention clearly appears therein.

Residuary Bequests

28. Effect of general residuary bequest

A general residuary bequest shall comprise all free property of the testator as at the date of his death, whether or not acquired after the date of the will, of which he has not otherwise disposed, and shall include all free property of which he may have attempted but failed to dispose, even though expressly excepted from the gift.

29. Effect of limited residuary bequest

A limited residuary bequest shall have the same effect as a general residuary bequest, subject only to the specific limitation therein expressed or implied.

30. Effect of particular residuary bequest

A particular residuary bequest shall comprise all free property of the testator falling under the particular description as at the date of his death, of which he has not otherwise disposed, and shall include all such property of which he may have attempted but failed to dispose.

31. Effect of failure of share of residue

The failure of any gift of a share in a residuary bequest, whether general, limited or particular, shall not result in that share accruing to the other shares therein, but, subject only to any subsequent residuary bequest, shall create an intestacy in respect of that share.

General Legacy of Property not Possessed

32. General legacy of property not in testator’s possession

Notwithstanding the provisions of paragraphs 8 to 14 of the Second Schedule to this Act, where a general legacy is in the form of a gift of a specified type of property which is not at the time of the testator’s death included in his estate, the value of that gift shall, if it can be ascertained, be met from the testator’s general estate, but if the value thereof cannot be ascertained the gift shall fail.

Annuities

33. Annuity created by will payable for life only, unless contrary intention appears by will

Where an annuity is created by will, the legatee shall be entitled to receive it for his life only, unless a contrary intention appears by the will, notwithstanding that the annuity is directed to be paid out of the income of a specified fund or specified property.

34. Annuities for maintenance and education

Where there is the gift of an annuity for the maintenance and education of the beneficiary, that annuity shall be deemed to be given for the life of the beneficiary.

35. Where will directs that annuity be provided out of property or where money bequeathed to be invested in purchase of annuity

Where a will directs that an annuity shall be provided for any person out of the proceeds of property generally, or where money is bequeathed to be invested in the purchase of an annuity for any person, the legatee may either have an annuity purchased for him or receive forthwith the money appropriated for that purpose by the will.

36. Relation of annuity to residuary estate

• Where there is a direct gift of an annuity, or where a will manifests an intention that an annuity shall be charged on the capital of the testator’s residuary estate, the annuity shall constitute a charge upon that capital.
• In all other cases, in default of specific provision, the annuity shall be payable only out of the income of the residuary estate.
• In default of provision to the contrary, an annuity payable only out of the income of the residuary estate, or of a specified fund or of specified property, shall constitute together with all arrears thereof, a continuing charge on the whole of the income.

37. Commencement of annuity and time for payment when no time fixed by will

When an annuity is given by will, and no time is fixed for its commencement, it shall commence from the testator’s death, and the first payment shall be made at the expiration of one year after that event:

Provided that, where there is a direction that the annuity shall be paid quarterly or monthly, the first payment shall be due at the end of the quarter or month, as the case may be, immediately after the testator’s death; and shall, if the personal representatives think fit, be paid when due but the personal representatives shall not be bound to pay it until the expiry of twelve months after the testator’s death.

38. Dates of successive payments directed to be made within given time or on day certain

Where there is a direction that the first payment of an annuity shall be made within any specified period of time after the death of the testator, or on a day certain, the next payment to be made, and subsequent payments shall be made accordingly.

39. Apportionment

If an annuitant dies in the interval between the times for payment of his annuity, an apportioned share of the annuity shall be paid to his personal representatives.

Gifts of Income

40. Gift of income for indefinite period

Where the income of any fund, property or residuary estate is bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the gift should be of limited duration, the principal, as well as the income, shall belong to the legatee.

Gifts for Special Purposes

41. Effect of gift for special purpose

Where a gift is bequeathed solely for the benefit of the legatee, then, notwithstanding that words are added to the gift expressing a purpose for which the gift is made, the legatee shall be entitled to claim the gift without applying it to that purpose, whether or not the purpose be expressed in obligatory terms:

Provided that—

• where the gift is made subject to a gift over of any surplus remaining after the purpose has been fulfilled, the provisions of this paragraph shall apply only to so much of the gift as is necessary for such purpose;
• the provisions of this paragraph shall not apply where the purpose specified is so expressed as to create a condition or a discretionary trust with gift over, nor where the legatee is a minor.

42. Effect of discretion as to time

Where a gift of a sum of money is directed to be applied solely for the benefit of a person in a certain way, but the time within which the gift is to be expended is left in the discretion of the personal representatives or of trustees, the beneficiary shall not, so long as the personal representatives or the trustees properly exercise their discretion, demand payment of the money, but if he dies before the money is so applied, his personal representatives shall be immediately entitled to the money.

Conditional Gifts

43. Express words unnecessary

No precise form of words shall be necessary to create a condition in a will, and any expression disclosing such an intention of the testator shall have that effect.

44. Void conditions

Any condition shall be void which—

• requires the performance of an illegal act, or is not legally enforceable; or
• is contrary to law, morality or public policy; or
• is uncertain, or is too vague to be enforced; or
• offends against any law as to accumulations, remoteness, or perpetuities; or
• is impossible ab initio, or becomes impossible by the act or default of the testator, or by an act of any court; or
• is repugnant to the gift to which it is annexed; or
• is in total restraint of the marriage of any person other than a widow; or
• is attached to a gift of capital to a window, in total restraint of her marriage, without providing for any gift over on default; or
• forbids dispute of the will, without providing for any gift over on default; or
• restrains alienation, voluntary or involuntary, of the subject of the gift:

Provided that nothing in this subparagraph shall affect or render void any discretionary trust with gift over, or any life estate made determinable on bankruptcy.

45. Condition either precedent or subsequent

• A condition shall be either precedent, in that the performance thereof is made to precede the vesting of a gift in interest, or subsequent, in that the non­performance thereof is made to determine a gift antecedently vested in interest.
• In case of doubt, construction of a condition as a condition subsequent shall be preferred to construction as a condition precedent.

46. Effect of void condition

• Where a gift is made upon a condition subsequent which is void, the gift shall be absolute.
• Where a gift is made upon a condition precedent which is void, the gift shall be void if—
• the void condition is the sole motive of the bequest; or
• the impossible nature of the condition was unknown to the testator; or
• the condition is illegal as involving the performance of an unlawful act, but in all other cases the gift shall be absolute.

47. Effect of impossibility supervening

• Where a gift is made upon a condition subsequent which was valid ab initio, but which has, for any reason, become impossible before being performed, the gift shall be absolute.
• Where a gift is made upon a condition precedent which was valid ab initio, but which has, for any reason other that the act or default of the testator or an act of any court, become impossible before being performed, the gift shall be void.

48. Legatee bound by legal conditions

Where a legatee has taken a gift subject to a valid condition, he shall be estopped by his act of taking the gift from subsequently insisting on rights which, by the terms of the conditions, he is bound to release, or from declining a duty which he is required by the condition to perform.

49. One or two separate and independent bequests to same person may be accepted and the other refused

Where a will contains two separate and independent gifts to the same person, the legatee may take one of them, and may refuse the other, although either or both of the gifts was made upon condition.

50. Time in which conditions must be performed

Where a gift is made upon a condition, and no time is specified for its performance, the legatee shall perform the condition within a reasonable time:

Provided that—

• where the condition is for the benefit of another person, then, in the absence of any specified time in which the condition is to be performed, the legatee shall perform the condition upon demand being made by that other person;
• where the condition is the happening of a specified uncertain event beyond the control of the legatee, the gift shall take effect if that event happens before the gift is payable or distributable, but not thereafter.

51. Performance generally

The performance of a condition shall be such as to constitute a substantial compliance with the terms of the condition:

Provided that, in respect of time, there shall be strict compliance where there is any express gift over.

52. Ignorance of condition

Where a gift is made upon a valid condition, ignorance of that condition shall not protect the legatee from the consequences of his default, unless ignorance is attributable to the act of default of some person who benefits by breach of that condition.

Gifts to Executors

53. Legatee named as executor cannot take unless he shows intention to act as executor

If a gift is bequeathed to a person who is named an executor of the will for his own benefit, and is not given independently of the office of executor, there shall be a presumption that he is not intended to take the gift unless he proves the will or otherwise unequivocally manifests an intention to act as executor.

Vesting and Divesting of Gifts

54. Meaning and effect of vesting

• A gift shall vest in the legatee in interest when his entitlement to the gift, whether in possession or reversion, or to be enjoyed in possession at some future time, becomes certain.
• Where the legatee dies before receiving possession of a gift already vested in him in interest, that gift, unless divested by his death, shall pass to his personal representative.
• Where the legatee dies before a gift vests in him in interest, the gift shall have no effect:

Provided that a gift over which is contingent only upon a collateral event, irrespective of the legatee attaining a specified age or surviving a specified period, shall vest in the personal representatives of the legatee if that event happens after his death.

55. Direction for vesting

A direction that a gift shall vest at any given time shall, unless it appears from the will to refer to vesting in possession, be construed as referring to vesting in interest.

56. Time of vesting of general terms

If a gift be made in general terms, without specifying any particular time for the vesting thereof, the legatee shall have a vested interest therein from the day of the death of the testator, or so soon thereafter as he comes into existence or the terms of the gift may otherwise permit.

57. Vesting of contingent gifts

If a gift be made in terms which clearly indicate that the interest of the legatee shall be contingent upon the happening of some uncertain event (other than the performance of a void condition not itself avoiding the gift), such interest shall not vest in the legatee until the event has happened.

58. Gift may vest subject to subsequent divesting

A gift may be made to vest immediately on the testator’s death or on the happening of a specified event, notwithstanding that, by the terms of the will, it is subject to subsequent divesting on the happening or not happening of some uncertain event.

59. Absolute gift with enjoyment postponed

Where a substantive gift is made subject only to a direction that it shall not be paid or delivered to the legatee until the happening of some future event, the legatee shall acquire an immediate vested interest, although vesting in possession shall be postponed in accordance with the direction:

Provided that a mere direction that the legatee attains an age exceeding full age shall be inoperative after he attains full age.

60. Direction for payment without substantive gift

Where the gift consists solely in a direction to pay or distribute at a future age, or upon the happening of some future event (other than performance of a void condition not itself avoiding the gift) without any substantive gift, the gift shall not vest in interest until that future age is attained or such future event occurs:

Provided that when the payment or distribution appears to be postponed merely for the convenience of the fund or the property, as the case may be, the vesting shall not be deferred as provided in this paragraph.

61. Gift subject to attaining certain age or marrying

Where a gift is made to a legatee and the attainment of a certain age or marriage is introduced into and made a constituent part of the description or character of the legatee, the vesting of the gift in interest shall be postponed until the attainment of that age or marriage, as the case may be.

62. Effect of interim direction for maintenance

Where, under the terms of any gift the vesting thereof purports to be postponed to a given age and the gift is accompanied by a direction that the intermediate income shall be applied for the maintenance of the legatee, the gift shall vest in interest immediately, whether or not he attains that age:

Provided that this rule shall not apply to the gift of an entire fund to be distributed among a class of persons equally on attaining a given age.

63. Ambiguity of vesting contingency or divesting

Where the terms of a will are ambiguous in respect of the vesting, contingency or divesting of a gift, it shall, subject to all other rules of construction, be so construed as to give the legatee a vested rather than a contingent interest.

Satisfaction

64. Presumed satisfaction of debt

Where a debtor bequeaths a gift to his creditor, and the gift is equal to or greater than the debt, there shall be a presumption that the gift is intended to satisfy the debt, and not to be taken in addition to payment of the debt:

Provided that this presumption shall arise only in respect of a debt contracted before the date of execution of the will.

65. Presumed satisfaction of portion

Where a person who is under an obligation by contract to provide a portion for his child, or for some other person to whom he stands in loco parentis, fails to do so, but makes a gift to that child or other person by will, there shall be a presumption that the gift is intended to satisfy that portion, so far as the gift extends.

66. No presumed satisfaction of gift made previously in contemplation of death

A gift made by will shall not of itself raise any presumption that such gift is intended to satisfy or to take the place of a gift, whether or not of equal amount, previously made to the same person by the testator in contemplation of death.

Additional and Substituted Gifts

67. Two gifts to same person

Where a testator has purported to make two gifts to the same person, and a question arises whether he intended to make the second gift instead of or in addition to the first, and if there is nothing in the will or wills to show what he intended, the following rules shall have effect in determining the construction to be put upon the will or wills—

• if the same specific thing is bequeathed twice to the same legatee by the same will, or by separate wills, he shall be entitled to receive that specific thing only;
• where one and the same will purports to make, in two places, a gift to the same person of the same quantity or amount of anything, he shall be entitled to one of those gifts only;
• where two gifts of unequal amount are given to the same person by the same will, the legatee shall be entitled to both gifts;
• where two gifts, whether equal or unequal in amount, are given to the same legatee by separate wills, the legatee shall be entitled to both gifts.

Liabilities Incidental to Gifts

68. Liability for charges

• Where the free property of a deceased person includes an interest in property which at the time of his death is charged with the payment of money, whether by way of mortage, charge, lien (including a lien for unpaid purchase money), pledge or otherwise, and the deceased has not by will, deed or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for such payment and every part of the interest, according to its value, shall bear a proportionate part of the payment.
• Any contrary or other intention shall not be deemed to be signified by a general direction for payment of debts out of any residuary estate, or by a charge of debts upon any residuary estate, unless the intention is further signified by words expressly or by necessary implication referring to the payment so charged.
• A periodical payment in the nature of land revenue or in the nature of rent in respect of any period prior to the death of the testator, shall not be such a payment contemplated by this rule.

69. Completion of testator’s title to things bequeathed to be at cost of his estate

Where anything is to be done to complete the testator’s title to the thing bequeathed, other than a payment with which that thing is charged at the date of his death, it shall be done at the cost of his estate.

70. Exoneration of legatee’s immovable property for which land revenue or rent payable periodically

Where there is a gift of any interest in immovable property, in respect of which payment in the nature of land revenue or in the nature of rent has to be made periodically, the estate of the testator shall (as between the estate and the legatee) make good such payments or a proportion of them, as the case may be, up to the day of his death.

71. Exoneration of specific legatee’s securities

In the absence of any direction in the will, any call or other payment due from the testator at the time of his death in respect of any securities, of which there is a specific legacy, if the same is not then charged upon those securities by way of lien or otherwise, shall, as between the testator’s estate and the legatee, be borne by the estate, but if any call or other payment becomes due in respect of those securities after the testator’s death, the same shall, as between the testator’s estate and the legatee, be borne by the legatee, if he accepts the gift.

72. Order of payment when legacy directed to be paid out of fund the subject of specific legacy

Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the same fund, the portion specifically bequeathed shall first be paid to the legatee thereof, and the demonstrative legacy shall be paid out of the residue of the fund, and, so far as the residue shall be deficient, out of the general assets of the testator, in exoneration of the specific legacy.

73. Expenses to be borne by legatee

The costs of preservation, transfer or delivery of the subject of a specific legacy shall be borne by the legatee.

Gifts to Survivors

74. Gifts to such of certain persons as shall be surviving at some period not specified

• Where a gift is in effect made to such of certain persons as shall be surviving at some period, but the exact period is not specified, it shall go to such of them as shall be alive at the time of payment or distribution and capable of taking.
• The provisions of this paragraph shall apply whether the gift is to vest in possession immediately on the death of the testator, or at some time subsequent thereto upon the termination of a prior interest:

Provided that, where the time of payment of distribution depends upon the happening of two events, one of which is personal, and the other of which is not personal, to the legatee, the gift shall subject to all other rules of construction, be construed as referring to the happening of the former event exclusively.

Exercise of Powers

75. Execution of power of appointment by general legacy or residuary bequest

Unless a contrary intention is clearly expressed or implied in the will—

• a general legacy or limited residuary bequest shall be construed to include any property falling within the general description of such legacy or bequest over which the testator may have a general power of appointment by will and shall operate as an execution of that power as regards such property; and
• a general residuary bequest shall be construed to include any property over which the testator may have a general power of appointment by will and shall operate as an execution of that power:

Provided that, unless an intention in that behalf is clearly expressed or implied in the will, no such gift shall in either event be construed as an exercise of any power of revocation and new appointment.

76. Execution of special powers

No general legacy or general residuary bequest shall be construed as an execution of any special power of appointment, unless an intention in that behalf is clearly expressed or implied in the will.

77. Particular residuary bequests

No particular residuary bequest shall be construed as an execution of any general or special power of appointment, unless an intention in that behalf is clearly expressed or implied in the will.

78. Implied gifts to objects of special power in default of appointment

Where by a will any special power of appointment is given over property, but no provision is made in the event of default of appointment, the property shall, in default of any such appointment or so far as it may not extend, belong to all the objects of such power in equal shares, subject to all appointments made thereunder being brought into account.