Wills: Revocation, Additions And Alterations

Question 1

What is revocation

Answer 1

Revocation is the formal act of cancelling or withdrawing a will.

Question 2

What is the effect of revocation

Answer 2

Nullify the will, either as whole or part

Question 3

What are the 3 situations where a will can be revoked?

Answer 3

By a later will or codicil

By destruction

By marriage/forming a civil partnership

Question 4

How is a will revoked by a later will or codicil?

Answer 4

S 20 wills act.

Will may be revoked in whole or part, by a declaration to that effect in a later wll or codicil.

No particular working is required, but a professioanl drafted will usually starts with ;in hereby revoke”.

If a will does NOT contain an express revocation clause, it operates to revoke any earlier will or codicil by IMPLICATION, if they are inconsistent. (Or partial revocation)

Question 5

How do you revoke a will be destruction?

Answer 5

S 20 Wills Act

May be revoked by “burning, yearning, or otherwise destroying the same by the testator or by someone in his presence and by his directs with intention of revoking the same”

Must be carried out by testator themselves or someone by direction. Must be in absence of testator.

Question 6

Is symbolic destruction allowed for revocation of will?

Answer 6

NO. Simply crossing out wording or writing revoked, is NOT sufficient.

Although ,if a vital part is destroyed - like a signature, then the partial destruction make revoke only that part which was actually destroyed.

Question 7

What must the act of destruction carry with it?

Answer 7

It MUST carry the INTENTION to revoke. A will destroyed by accident is not revoked.

Question 8

How doe marriage or civil partnership revoke a will?

Answer 8

If testator marries or forms, the will is revoked.

S 18A - 18C Wills Act

This is automatic.

Question 9

When does marriage NOT revoke a will?

Answer 9

If it appears from the will that the testator makes the will PRIOR and in EXPECTATION of a forthcoming marriage with a PARTICULAR PERSON, and that testator does not intend it to be revoked.

Also, if testator marries and then codicil of the original will, the original wll is then not destroyed.

Or, the testator must intend that the will is not to be revoked by marriage.

Question 10

What are mutual wills

Answer 10

Arise when 2 people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.

If one dies before, and the other changes it, then equity will step in and impose a constructive trust over the surviving persons estate, in favour of the original mutual will.

Question 11

What are codicils?

Answer 11

Rather than revoking, the testator may want to amend or add to the wills.

It is a document, executed in same as will. Can be used eto amend, add to revoke parts of an existing will.

Question 12

If the testator makes codicils, when is the will deemed to hae been made?

Answer 12

Under s 34, deemed to have been made at the time of REPUBLICATION.

Question 13

Can a codicil revive a will which has been revoked?

Answer 13

Yes. S 22 provides that a revoked will can be REVIVED by the re-execution therefore or by codicil executed in manner showing intention to revive.

Question 14

When are alterations to the will valid?

Answer 14

If made before execution, they are valid.

If made after, they must be executed LIKE a will - initials of testator and witness in margin next to amendment will suffice. If alterations is valid, then must be read to take in account.

Question 15

What happens if an alteration is invalid?

Answer 15

The original wording of the will stands provided that it can be deciphered.

The original wording must be capable of being read on the face of the actual will.

Question 16

What is the exception to the requirement that to be valid an alteration must be executed?

Answer 16

When the testator makes an amendment which simply obliterates the original worlding.

There is a revocation of the original wording by destruction, provided it is intention to revoke as well.

The will itself remains valid, but takes effect WITHOUT the obliterated words.

Question 17

What is the doctrine of dependent relative revocation?

Answer 17

The testators intention to revoke their will by destruction was conditional upon a FUTURE EVENT.

If that event did not in fact happen, then the original will may be valid, even though it was destroyed.

Question 18

What is the doctrine of mutual wills?

Answer 18

Where 2 or more people make wills in similar terms, and agree that whichever of them survives, will irrevocably leave their estate in a certain way

Question 19

What happens if the wife is the first to die in a mutual wills situation?

Answer 19

If the husband revoked the mutual will and made a new one, this is a valid testamentary act.
HOWEVER, because the wife had fulfilled her side of the bargain, the husband cannot go back on his word.

Equity steps in, in doctrine of minimal wills.

It imposes a constructive trust over the husband estate in favour of the wife’s issues, as the beneficiary under the original mutual will.

This means a future wills will be invalidated.

Question 20

What is s 34 of the WIlls Act

Answer 20

A republished will is deemed to have been made AT THE TIME OF REPUBLICATION

Question 21

What does s 22 of the wills act state?

Answer 21

A codicil can be used to revive a will which has PREVIOUSLY been revoked.

This resurrects the old will, and it takes effect as if made at that time.

Question 22

What is s 21 of the Wills Act

Answer 22

Alterations made after the will was executed can be valid if those alterations were themselves executed like a will

Question 23

What is an exception to the requirement of valid codicil alterations?

Answer 23

When the testator makes an amendment which simply OBLITERATES the original wording.

Provided the act of destruction was accompanied with the intention to revoke.

The will ITSELF is valid, but that gift is destructed and nothing is left.

This is called an obliterations

Question 24

What is an obliteration ?

Answer 24

When the original wording in a will is wholly unreadable.

This is treated as revoking the original GIFT>