Topic 3 - Will Amendment and Revocation

Question 1

What is the purpose of manuscript amendments to a will?

Answer 1

To reflect the testator’s current wishes when the existing will does not.

Question 2

What options does a testator have to amend their will?

Answer 2

• An entirely new will
• A codicil to an existing will
• Manuscript amendments to their original will

Question 3

Why is it generally advised to make a new will rather than a codicil or manuscript amendments?

Answer 3

The cost of making a new will is minimal compared to potential disputes from poorly drafted codicils or unclear manuscript amendments.

Question 4

What types of amendment are mentioned in the context of a will?

Answer 4

• Obliteration
• Interlineation
• Other alterations

Question 5

What is the general rule regarding amendments made after a will is executed?

Answer 5

They are invalid and unenforceable.

Question 6

What presumption exists regarding the timing of alterations to a will?

Answer 6

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

Question 7

What must be true for an alteration to be deemed valid if it is executed like a will?

Answer 7

It must be signed by the testator and two witnesses.

Question 8

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

Answer 8

It is treated as having been made by the testator with an intention to revoke.

Question 9

What does ‘apparent’ mean in the context of manuscript amendments?

Answer 9

The original wording can be deciphered by natural means without extrinsic evidence.

Question 10

What is the significance of a conditional intention to revoke in the context of manuscript amendments?

Answer 10

It allows for extrinsic evidence to show the original wording if the testator intended to revoke a gift conditionally.

Question 11

When might manuscript alterations to a will be appropriate?

Answer 11

• No impact on interpretation or meaning
• Changes must be made urgently

Question 12

What is a codicil?

Answer 12

A formal testamentary document that amends an earlier will without replacing it.

Question 13

What is required for a codicil to be valid?

Answer 13

Testamentary capacity, knowledge and approval, and compliance with s.9 Wills Act 1837.

Question 14

What can codicils be used to do?

Answer 14

• Create new provisions
• Edit existing provisions
• Revoke provisions in a will

Question 15

What are common drafting pitfalls when creating a codicil?

Answer 15

• Not noting changes to the testator’s name or address
• Missing affirmations of unchanged parts
• Incorrect cross references

Question 16

What does executing a codicil do to the original will?

Answer 16

It acts to ‘republish’ the will and any codicils it refers to.

Question 17

What happens if there are inconsistencies between a codicil and an original will?

Answer 17

The codicil will only revoke the original will to the extent of the inconsistencies.

Question 18

What must be included in a codicil to avoid ambiguity?

Answer 18

Express statements regarding the extent to which earlier wills are confirmed or revoked.

Question 19

Fill in the blank: A testator should be advised against making any _______ to their will.

Answer 19

[manuscript alteration]

Question 20

What is the purpose of correcting problems by a codicil?

Answer 20

A codicil can ‘correct’ problems with an earlier testamentary document by re-executing the will.

This allows for adjustments to be made without creating a new will.

Question 21

What effect does s15 Wills Act 1837 have on beneficiaries who witness a will?

Answer 21

It denies the beneficiary their inheritance.

However, if a later codicil is witnessed by different people, the original gift can still be honored.

Question 22

How can unattested manuscript amendments in a will be confirmed?

Answer 22

They can be confirmed by a later codicil that expressly refers to the alterations.

This is necessary because such amendments are generally not effective if made after execution.

Question 23

What occurs if a will is not properly executed according to s9 Wills Act 1837?

Answer 23

Due execution of the codicil will validate the original will.

This means that even if the original will was flawed, the codicil can still make it valid.

Question 24

What does a codicil do in relation to revocation?

Answer 24

A codicil may revoke only part of an earlier will or the document in full.

If it revokes a will in full without containing new terms, the testator may be intestate.

Question 25

What is the difference between revocation and revival of a will?

Answer 25

Revocation cancels a will, while revival re-establishes a previously revoked will if intended by the testator. ## Footnote Revival is only possible if the will was valid before revocation.

Question 26

What methods can revoke a will?

Answer 26

* Destruction * Revocation by a later will * Revocation by later codicil * Testator’s subsequent marriage * Testator’s divorce * An effective alteration ## Footnote These methods highlight the various ways a will can be invalidated.

Question 27

How does s20 Wills Act 1837 define revocation by destruction?

Answer 27

A will may be revoked by 'burning, tearing or otherwise destroying' it with the intention to revoke. ## Footnote Both the physical act and intention are necessary for effective revocation.

Question 28

What is required for a testator to effectively revoke a will?

Answer 28

The testator requires the same testamentary capacity to revoke a will as to make a valid will. ## Footnote This ensures that the revocation is legally sound.

Question 29

What happens if a will is missing after a testator's death?

Answer 29

The testator is presumed to have destroyed their will with the intention to revoke it unless evidence suggests otherwise. ## Footnote This presumption can complicate probate proceedings.

Question 30

What is the effect of an express revocation clause in a will?

Answer 30

It ensures that all previous wills are revoked, leaving only one valid will at any time. ## Footnote This clause is a standard inclusion in will drafting.

Question 31

What distinguishes mutual wills from mirror wills?

Answer 31

Mutual wills involve an agreement between testators not to change their wills without consent, while mirror wills are simply similar wills made by a couple. ## Footnote Mutual wills create a constructive trust; mirror wills do not.

Question 32

What is the effect of marriage on a will according to s18 Wills Act 1837?

Answer 32

Marriage automatically revokes any will made prior to the marriage. ## Footnote This applies regardless of the testator's intention.

Question 33

How can a testator avoid the automatic revocation of their will upon marriage?

Answer 33

By drafting the will in contemplation of marriage, naming the future spouse and stating the intended ceremony. ## Footnote This allows the will to remain effective despite the marriage.

Question 34

What happens to a will upon divorce according to s18A Wills Act 1837?

Answer 34

The will takes effect as if the former spouse had died on the date of the court order, affecting any appointments or gifts to the ex-spouse. ## Footnote This highlights the importance of reviewing wills after a divorce.

Question 35

What is dependent relative revocation?

Answer 35

It refers to the intention to revoke an original gift only if the new or amended version is valid. ## Footnote If the new version is invalid, the original gift remains intact.

Question 36

What happens to the appointment of a former spouse or civil partner as executor or trustee after divorce?

Answer 36

It is not effective.

Question 37

What occurs to a gift in the will to a former spouse or civil partner after divorce?

Answer 37

It will fail.

Question 38

Why is it sensible to advise married clients about the effects of divorce on their will?

Answer 38

To inform them of the consequences when taking instructions for their will.

Question 39

What is the outcome if the spouse or civil partner was the sole executor and they can no longer act?

Answer 39

An administrator will be appointed.

Question 40

What happens to items if a gift to a former spouse fails?

Answer 40

They may pass to a named alternative beneficiary or under the general gift of residue.

Question 41

What could result from the failure of a gift to a spouse?

Answer 41

Full or partial intestacy.

Question 42

What is the significance of a contrary intention expressed in the will regarding ss 18A and 18C?

Answer 42

The testator can state that a spouse or civil partner should inherit despite divorce.

Question 43

In the provided will example, what happens to Clause 1 after the testator's divorce?

Answer 43

The appointment of the spouse as executor is ineffective; the testator’s brothers will be appointed instead.

Question 44

In the provided will example, what happens to Clause 4 after the testator's divorce?

Answer 44

The spouse receives nothing, and the gift fails.

Question 45

What does Section 18A/C affect regarding wills?

Answer 45

It only affects wills made prior to a divorce or dissolution of a civil partnership.

Question 46

How does Section 18A/C impact the rights of a former spouse or civil partner to claim against the deceased’s estate?

Answer 46

It does not affect their right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Question 47

What is often better for a client who gets divorced regarding their will?

Answer 47

To make a new will rather than rely on implied partial revocation by statute.