Chapter 2: Alternation, amendment and revocation of wills

Question 1

If a will is altered before execution, will it be valid?

Answer 1

Yes, the alteration will be valid if:
1. The alteration was made before execution
2. The will reads naturally after amendment

Question 2

What is the presumption regarding unattested alterations?

Answer 2

Unattested alterations are presumed to have been made after execution unless they are merely filling in a blank space

Question 3

What is the starting point if a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?

Answer 3

The original gift will apply

Question 4

What is the effect of an alteration making the original gift illegible?

Answer 4

This is an obliteration and the original gift fails completely

Question 5

What is a codicil?

Answer 5

Brief document that adds to, amends, or partially revokes an existing will

Used in the past when wills were long handwritten documents

Question 6

What are the three requirements of a codicil?

Answer 6

1. Must make reference to the will
2. Must satisfy the formalities of a will, i.e. writing signed and witnessed
3. Clause should be included confirming the unamended part of the will

A codicil can be used to remedy a gift which was void because the beneficiary witnessed the will

Question 7

What effect does marriage or a civil partnership have on a will?

Answer 7

Marriage automatically revokes a will unless it appears from the will that, when it was made, the testator was expecting to marry that particular person and that the will should not be revoked by marriage.

Question 8

What effect does divorce have on a will?

Answer 8

• If the former spouse was appointed by executor, this is ineffective.
• Any gifts to the former spouse are revoked.
• The remainder of the will is valid.

This is the position unless a contrary inention is stated

Question 9

What is the effect of a later will or codicil?

Answer 9

The will is revoked (wholly or partially) by later will or codicil

Question 10

What is the effect of a testator (or someone at T’s direction and in their presence) burning, tearing or otherwise destroying a will?

Answer 10

A will is revoked if there is an act of destruction and an intention to revoke

Question 11

What will happen if a will is found mutilated at the date of death?

Answer 11

There will be a reubuttable presumption that this was done by the testator with an intention to revoke

Question 12

What happens if a will cannot be found on the testator’s death

Answer 12

There is a reubuttable presumption that a will last known to be in the testator’s presence, but which cannot be found on death, has been destroyed by the testator with an intention to revoke.

Question 13

How does the court-applied doctrine of dependent relative revocation save a will?

Answer 13

If the testator’s intention to revoke the will was conditional on a future event, and the event did not take place, the original will, even if destroyed, may be valid if it can be reconstructed

Question 14

What are mutual wills?

Answer 14

• Wills made by two or more persons with same provisions and conferring reciprocal benefits
• There is a contract between parties that wills are to be irrevocable and will remain unaltered