Will amendments

Question 1

What are the 3 ways a will can be amended?

Answer 1

1. making manuscript amendments to the original will
2. making a codicil to an existing will
3. revoking the existing will and creating a new one

Question 2

What governs the rules on altering a will or codicil by hand?

Answer 2

S21 WA 1837

Question 3

S21 WA 1837 reads:

Answer 3

No obliteration, interlineation or other alteration made after the execution shall be valid or have any effect - except so far as the words before such alteration shall not be apparent, unless the alteration shall be executed in like manner as required of the execution of a will

Question 4

In the context of altering a will, explain obliteration

Answer 4

Obliteration - where the text has been crossed out in such a way that the original text is illegible

Question 5

In the context of altering a will, explain interlineation

Answer 5

Interlineation - where writing is inserted between the existing lines of the document, often adding something that was previously omitted

Question 6

In the context of altering a will, explain other alterations

Answer 6

Other alterations - include additions added at the end of a will, a strike through of text which is still legible

Question 7

What is the general rule with post-execution alterations?

Answer 7

Post-execution alterations are generally invalid and unenforceable

However if the alternation was made before execution it may be valid

Question 8

Are attested alterations of a will valid?

Answer 8

These are valid if an alteration is executed like a will - the witnesses do not need to be the same people who witnessed the will

Question 9

General rule for unattested alterations and validity?

Answer 9

The general rule is that unattested alterations are invalid as they are presumed to have been made post execution - however there are some exceptions

Question 10

Exceptions - unattested alterations

Answer 10

1. Blank space - where a blank space has been completed it is presumed that this occurred before execution
2. obliteration - where the original wording is not apparent because it has been obliterated, it is treated as being revoked and the alteration has effect

Question 11

Alterations that take effect

Answer 11

1. made before execution of the will
2. obliterations with the intention to revoke
3. attested alterations
4. completion of blank spaces
5. confirmation by re-execution or codicil with reference to the alteration

Question 12

Alterations not given effect

Answer 12

1. made after execution
2. obliteration without the intention to revoke or by third parties
3. obliteration as conditional revocation
4. unattested alterations

Question 13

What is a codicil?

Answer 13

A legal document that adds or amends an existing will

Question 14

Do the rules relating to validity of a will apply to codicils?

Answer 14

Yes - to make a valid codicil the testator must have TC, knowledge and approval, and comply with s9 WA requirements

Question 15

When are codicils appropriate?

Answer 15

1. creating a new will provision
2. edit an existing will provision
3. revoke a provision

Question 16

Is there a maximum number of codicils that can be made?

Answer 16

No there is no legal maximum number - but good practice to keep it at a limited number

Question 17

Republishing a will

Answer 17

When T executes a codicil, this act republishes the will - meaning the will is given effect as if it had been executed on the date of the executed codicil

Question 18

Revocation in codicils

Answer 18

A codicil may revoke only part of a will or the entire will - if a codicil revokes an entire will, unless the codicil contains new terms, T will effectively die intestate

Question 19

Revival in codicils (with an exception)

Answer 19

A codicil can revive a will that was previously revoked if this is T’s intentions (under s22 WA 1837)

However if the original will was destroyed then it cannot be revived

Question 20

Ways of revoking a will (or clause)?

Answer 20

1. Destruction
2. An effective alteration
3. Revocation by a new later will
4. Revocation by a new later codicil
5. Testator’s subsequent marriage
6. Testator’s divorce

Question 21

How can a will be revoked by destruction under s20 WA 1837?

Answer 21

A will may be revoked by the testator burning tearing or otherwise destroying it - provided there is also an intention to revoke the will

Question 22

What are the 2 required elements for revoking a will by destruction?

Answer 22

1. Physically destroying the will
2. with the intention of revoking the will

Question 23

Is testamentary capacity required to revoke a will?

Answer 23

Yes - the same as making a will, TC is required to revoke the will

Question 24

Is complete destruction of an original will without TC a valid revocation?

Answer 24

No - T must have TC to revoke a will by destruction

Question 25

Key term: conditional revocation

Answer 25

If a testator amends their will by hand to substitute a new legacy /gift for an existing beneficiary, they may intend to revoke the original gift, but only if the new/amended version is valid

Question 26

What is the position if an amendment to a will is not valid?

Answer 26

If an amendment is not valid, the original will or gift has not been revoked and remains - therefore evidence of the original version may be submitted to the probate registry

Question 27

Does the original copy of the will need to be destroyed to revoke it?

Answer 27

Yes the original will must be destroyed rather than a copy

Question 28

What happens if T does not destroy all parts of a will?

Answer 28

This will depend on what parts remain - the revocation is only partial if the will can operate with what remains

Question 29

Can another person validly revoke a will for T?

Answer 29

Yes - but only where it is at the direction of T and in their presence

Question 30

Revocation for missing or damaged wills?

Answer 30

There is a presumption that missing or damaged wills are revoked

Question 31

Presumption of a missing will

Answer 31

Where its known that T made a will and kept in their possession, if this is missing it is presumed that T destroyed it with the intention to revoke - unless there is evidence to show otherwise

Question 32

Presumption of a damaged will

Answer 32

Where its known that T made a will and kept in their possession, if this is damaged it is presumed that T destroyed it with the intention to revoke - unless there is evidence to show otherwise

Question 33

Rebutting the presumed position regarding damaged or missing wills?

Answer 33

Those administering the estate will have the burden of rebutting the presumption of a missing or damaged will

Question 34

Revocation of a will by a new will

Answer 34

Express revocation clauses are standard - they are to ensure that all previous wills are revoked so there is only one valid will at one time

Question 35

Are express words of revocation required to revoke by will?

Answer 35

Yes - express words of revocation are required to revoke a will

Question 36

Is there ever cases where a testator may need more than one valid will at one time?

Answer 36

Yes possibly - say for example if the T has property abroad it may be practical to have 2 valid wills dealing with property separately

Question 37

Principle of implied revocation by will

Answer 37

If a new will does not contain an express revocation clause, it is implied that the earlier will is revoked and the later will is given priority

Question 38

Revoking a will by codicil

Answer 38

A codicil may revoke an entire will or a clause within it - but usually codicils only revoke a clause in a will with express wording

Question 39

Express wording in a codicil to revoke a will?

Answer 39

Where express wording of revocation is missing, the codicil only revokes the will insofar as it is inconsistent with the will

Question 40

Mutual wills - standard position

Answer 40

After making a will, even if mutual, a testator is free to change it and a will cannot be irrevocable

Question 41

Mutual wills - constructive trust exception

Answer 41

Where two people have agreed to not amend their wills without each others consent - if one person does, then a constructive trust may be imposed over the property on the terms previously agreed. This would limit the effect of a new will

Question 42

Are mutual wills common?

Answer 42

No and they should be approached with care

Question 43

Are mirror wills and mutual wills the same?

Answer 43

No - mirror wills are commonly used between couples

Question 44

What is the affect of a mirror will?

Answer 44

Example - each couple makes a mirror will that leaves their estate to the surviving partner, or if they do not survive it passes to their children

Question 45

Do mirror wills carry any constructive trust exceptions?

Answer 45

No - executing a mirror will does not imply that there is an agreement not to revoke the will so no constructive trust is imposed

Question 46

Revoking a will by marriage

Answer 46

When a person marries, this is an automatic revocation in full of any will or codicil, even when this is not T's intention - s18 WA 1837A

Question 47

Are wills automatically revoked by marriage or civil partnerships?

Answer 47

Yes - s18 WA 1837

Question 48

Wills in contemplation of marriage

Answer 48

It is possible to avoid the effect of s18, by drafting a will in contemplation of marriage

Question 49

What should a will in contemplation of marriage include?

Answer 49

The will must include the name of the future suppose and identify the intended ceremony - must also include express wording that T does not want the will to be revoked on the event of their subsequent marriage

Question 50

Revocation by divorce - general position

Answer 50

If a married testator gets divorced, the divorce order automatically operates as a partial revocation of their will