13.2: Alterations, amendments and revocation of wills Flashcards
What is the Alteration Rule in a will?
Attempting to amend a will AFTER its execution by inserting words, crossing them out or a combination of both will not be effective.
Exception - an alteration made before execution is valid:
++ Such amendments must be formally executed in the margin of the page near the relevant amendments.
++ A codicil can be executed, confirming the will at the date of the codicil.
How does obliteration affect a will?
If obliteration is so complete that original words are not apparent (cannot be read e.g), those words will be treated as having been revoked even though obliteration has not been subsequently executed. A magnifying glass is used to test if original words are apparent or not.
What is meant by revoking a will?
A will may be revoked at any time by the testator, provided they have retained testamentary capacity.
What are the 4 ways to revoke a will?
Four ways to revoke a will:
- [Another will] By a subsequent will
- [Destruction] By destruction
- [Obliteration / Alteration] By obliteration or alteration - usually only partial
- [Marriage / Civil Partnership] By marriage or civil partnership - often not intentional
How is a will revoked by a subsequent will?
A will only revokes a prior will insofar as it is inconsistent with it. It is standard practice to include a revocation clause at the beginning of every will.
How is a will revoked by destruction?
A will may be revoked by the testator burning, tearing or otherwise destroying their will or by someone else doing it at the testator’s direction and in their presence, with the intention of revoking it. Testator must do the act intending to revoke the will, destruction alone will not revoke the will.
N.B: Crossing out the will or writing ‘cancelled’ on it does not amount to destruction.
What are the rebuttable presumptions to destroying a will?
1) [Mutilated will at time of death]
If a will is found mutilated at the date of death, it is rebuttably presumed to have been done by the testator with the intention of revoking it
2) [Lost will - last seen with testator]
A will last known to have been in the testator’s possession but cannot be found at the date of death has been destroyed by the testator with the intention of revoking it.
What is the doctrine of dependent relative revocation?
Applied by the court to save a will.
Testator’s intention to revoke their will was conditional upon a future event such as the later execution of a new will. If that event did not take place, the original will may be valid even if destroyed, if it can be reconstructed from a copy or draft.
How is a will revoked by marriage or civil partnership?
A will is completely revoked by the subsequent marriage or civil partnership of the testator.
++ Exception: If it appears from the will that at the time, the testator was expecting to marry a particular person and they intended that all or part of the will should not be revoked by that marriage.
How is a will partially revoked by divorce, dissolution or annulment?
Will still remains valid - the law treats the former spouse or civil partner as having died on the date of the divorce or dissolution.
Any gifts to the former spouse or partner are revoked and the property will not pass to them.
What are mutual wills?
Wills made by two or more persons, usually with the same clauses and conferring reciprocal benefits.
Creates a contract between the two testators that the wills are to be irrevocable and will remain unaltered. [Equitable principle, creating a constructive trust in favour of the beneficiaries]
When is an executor appointed?
If an executor is appointed, somebody has died and left a will
When is an administrator appointed?
If an administrator is appointed, somebody has died and not left a will. Intestacy rules will kick in.
