Alteration and amendment of wills

Question 1

What are the conditions for incorporating documents into a will?

Answer 1

1. Document must exist when will is executed.
2. Will must refer to the document as being in existence at the time of execution.
3. Document must be clearly identified in the will.

Question 2

What happens if a document is validly incorporated into a will?

Answer 2

It becomes part of the will even though the document itself does not comply with s.9 Wills Act 1837.

The document will be made public along with the will once it is admitted to probate.

Question 3

What is the best way of including an inventory or detailed list of goods in a will?

Answer 3

As a schedule (rather than by incorporation)

Question 4

What are STEP provisions?

Answer 4

They can be incorporated to provide the administrators with nationally recognised provisions.

More common than drafting lengthy clauses

Question 5

What is a letter of wishes?

Answer 5

It expresses how the testator would like trustees to manage their discretionary powers.

Not legally binding

Question 6

What should testators generally do before making alterations to a will?

Answer 6

Testators should generally make a new will.

The cost of making a new will is minimal compared to costs incurred later if terms are poorly drafted.

Question 7

What is the general rule regarding hand alterations made after the execution of a will?

Answer 7

Amendments made after the will are invalid and unenforceable.

c.f Alterations made prior to execution form part of the will.

Question 8

What presumption exists regarding alterations made to a will?

Answer 8

There is a rebuttable presumption that an alteration was made after execution.

Question 9

How can one provide evidence that the clause was amended before execution?

Answer 9

One could provide affidavit evidence of the state and condition of the will at the time of execution.

Question 10

What is required for alterations to be valid in a will?

Answer 10

Alterations should be attested by a signature of the testator and two trustees in the margins.

They do not have to be the same people who witnessed the will.

Question 11

Where should signatures be placed in relation to alterations in a will?

Answer 11

Signatures should be next to the alteration.

Question 12

What is the benefit of attested alterations in a will?

Answer 12

Attested alterations remove the requirement to prove when the alterations were made.

Question 13

If amendments are not executed, what is the other way in which they can be deemed valid?

Answer 13

• re-executing the will as a whole
• executing a subsequent codicil that affirms the will

In both cases, express reference to the manuscript amendments is required

Question 14

What is the presumption when a blank space has been completed in a will?

Answer 14

There is a presumption that this occurred before execution - therefore valid.

Question 15

What happens if the original wording of a will is obliterated?

Answer 15

It will still be effective if the original wording is not apparent because it has been obliterated, covered over, or cut out.

Extrinsic evidence can be adduced to show that the testator did not intend to revoke/amendment was made by a 3P

Question 16

What if there is an obliteration with an alternative provision next to the obliteration?

Answer 16

• This shows conditional revocation
• Extrinsic evidence will be permitted to try and determine what the original wording was.
• The amendment will not be valid - the beneficiary will not receive the updated sum.

Question 17

When are manuscript changes appropriate in a will?

Answer 17

• When amendments have no impact on interpretation or meaning.
• If changes must be made urgently, and a codicil/will cannot be prepared

Question 18

What is a codicil?

Answer 18

A codicil amends an earlier will rather than replaces it.

Question 19

What legal requirement must a codicil comply with?

Answer 19

A codicil should comply with s.9 WA 1837.

Question 20

What can a codicil be used for?

Answer 20

A codicil may be used to create, edit, or revoke provisions in a will.

Question 21

What should be done for significant changes to a will?

Answer 21

Significant changes should advisably be done through a new will.

Question 22

Is there a legal maximum for codicils?

Answer 22

There is no legal maximum for codicils.

Question 23

What are common drafting pitfalls for codicils?

Answer 23

• Not expressly noting a change to the testator’s name and address
• Not affirming parts of the original will which remain unchanged
• Missing or incorrect cross reference to the date of the original will
• New codicil does not make sense when read in conjunction with the original will
• Incorrect clause numbering

Question 24

What should a codicil expressly state?

Answer 24

A codicil should expressly state the extent to which the testator confirms or revokes their earlier will.

Question 25

What happens if there is an inconsistency between a codicil and the original will?

Answer 25

Inconsistency leads to the codicil taking priority.

Question 26

What if there are inconsistencies with regards to the references to the date of the will or number of codicils?

Answer 26

Affidavit evidence can be used.

Question 27

How is a will republished with a codicil?

Answer 27

A codicil gives effect to a will as it had been executed on the date the codicil was executed. Therefore, when applying the rules of construction, the date of the codicil is used - "gift to my grandchildren" now means grandchildren alive at date of codicil

Question 28

Can a codicil correct problems with an earlier will?

Answer 28

Yes, a codicil can correct any problems with an earlier will. ## Footnote Particularly useful for s15

Question 29

What must a codicil do to confirm unattested manuscript amendments?

Answer 29

A codicil must expressly refer to the alterations it confirms. ## Footnote If not, aditional evidence is needed to prove the amendment was made before the codicil was executed.

Question 30

What happens if a codicil revokes all or part of a will but is then itself revoked?

Answer 30

If a codicil revokes all/part of a will, and the codicil itself is then revoked, this does not automatically reinstate the terms of the will that had been revoked.

Question 31

What happens if a codicil revokes an earlier will but does not itself contain new terms?

Answer 31

The testator will die intestate

Question 32

Can a codicil revive a previously revoked will?

Answer 32

Yes, a codicil can revive a will that was previously revoked. However, it is usually preferable to make a new will rather than revive a previously revoked will (could be confusion)

Question 33

What happens to a will when a person marries?

Answer 33

Marriage automatically revokes in full any will made prior to marriage.

Question 34

How can you avoid automatic revocation of a will on marriage?

Answer 34

- Draft the will in contemplation of marriage - Must name the future spouse and intended ceremony - Must expressly state whether or not the testator intends the will to be revoked on the event of marriage/CP ## Footnote In the absence of express wording to the contrary, the new will takes effect even if the ceremony does not.

Question 35

What does a court order confirming divorce or dissolution do to a will?

Answer 35

It automatically operates as a limited/partial revocation of the will, taking effect as if the former spouse or civil partner has died. ## Footnote This may result in partial intestacy. However, this does not affect the right of the former spouse or civil partner to bring a claim through IPFDA 1975.

Question 36

Can a will still provide for a former spouse or civil partner after divorce?

Answer 36

Yes, a will can make any provision for a former spouse or civil partner.