3. Wills: Revocation, Additions and Alterations

Question 1

DEF: Revocation

Answer 1

The formal act of cancelling or withdrawing a will

Question 2

What is the effect of revocation?

Answer 2

nullify the will, as a whole or in part

Question 3

When can a testator revoke their will?

Answer 3

At any time, so long as they have capacity

Question 4

Three situations where a will will be revoked

Answer 4

1. Later will or codicil
2. destruction
3. marriage or formation of civil partnership

Question 5

DEF: Doctrine of conditional revocation

Answer 5

Court may view testator’s intention as being that the revocation clause is conditional on a certain event (ie. the new will actually being valid), and if not satisfied the previous will will remain intact

Question 6

When will a later will or codicil revoke the original will?

Answer 6

1. declaration to that effect in later will or codicil
2. declaration to that effect executed in same way as will
3. no declaration but existence of a newer inconsistent will

Question 7

When might a new will ‘partially’ revoke the original will?

Answer 7

If both must be read together to piece together the testator’s intentions

Question 8

Necessary requirements to revoke a will by destruction

Answer 8

1. destruction by burning, tearing or otherwise destroying the will
2. by the testator or someone else in his presence by his direction
3. with the intention of revoking

Question 9

When will ‘symbolic destruction’ revoke a will

Answer 9

If a vital part of the will is destroyed (such as the signature)

Question 10

What if a will has been destroyed but not successfully revoked? What will happen?

Answer 10

court will look at evidence to establish the will’s contents (ie. copy of original will or oral evidence from those involved in drawing up the will)
- if contents can be reconstructed may treat it as valid will

Question 11

Doctrine of Dependant Relative Revocation

Answer 11

May save a will on the basis that testator’s intention to revoke will was conditional on a future event (eg upon later execution of a new will)

Question 12

When will marriage / civil partnership revoke a will?

Answer 12

If testator forms a civil partnership after executing a will, the will is revoked automatically

Question 13

When will a marriage or civil partnership after execution NOT revoke a will?

Answer 13

If testator made the will in expectation of forthcoming marriage or civil partnership with a particular person and did not intend revocation: two conditions for this

1. Expectation must be of a specific forthcoming marriage
2. testator must intend that the will is not to be revoked by the marriage (both must be present in the will)

Question 14

If a testator makes a will with a clause stating their anticipation of an upcoming specific marriage, if the marriage doesn’t happen, is the will still valid?

Answer 14

Yes, unless the will states it is conditional on this marriage
- or if the testator marries someone else

Question 15

If same sex partners convert their civil partnership to marriage will this revoke their will?

Answer 15

No

Question 16

DEF: Doctrine of Mutual Wills

Answer 16

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

Question 17

if a husband and wife make mutual wills, and the wife dies and the husband tries to revoke the will and make a new one - what will happen?

Answer 17

Equity will intervene (unconscionability)
- imposing a constructive trust over the husband’s estate in favour of the wife’s daughter as the beneficiary under the original mutual will

Question 18

Requirements to invoke doctrine of mutual wills:

Answer 18

Must have been agreement between testators as to disposal of their estates and agree the survivor will not revoke their will (or leave their estate in a particular way)

Question 19

If a husband and wife make mutual wills, and the husband revokes his will - what remedies would the wife have?

Answer 19

• damages in contract
• releases wife from the agreement

Question 20

Effect of codicil on original will

Answer 20

Republishes existing will (so long as testator intends this via an express statement or an inference from the court if codicil makes reference to existing will)

Question 21

Can a codicil revive a previously revoked will

Answer 21

Yes, if executed properly and with the right intention

Question 22

When would a will revived by a codicil take effect:

Answer 22

At the date it was revived

Question 23

How could the court know whether a codicil intends to revive a previously revoked will

Answer 23

express statement or inclusion of disposition which suggests the testator must have intended to revive the will
- mere references to will does not suffice

Question 24

Are alterations to wills valid if made prior to execution?

Answer 24

Yes, so long as intention is there
- but should show evidence of this, as otherwise it will be presumed to have been altered after execution

Question 25

When are alterations made to a will AFTER EXECUTION valid?

Answer 25

When they are executed like a will (initials in margin next to alteration will suffice)

Question 26

If a testator obliterates the wording in a will, does not need to be executed to be effective?

Answer 26

No, unless it includes an amendment (suggests revocation is conditions on new words being valid)
- if this happens, court will use any evidence to establish original words (eg. original will)

Question 27

Do invalid alterations of a will revoke the will?

Answer 27

So long as original wording can be deciphered, the will stands
- must be ‘optically apparent’
- not possible to use extrinsic evidence or interfere with the will by applying chemicals etc. or Xraying to produce another document

Question 28

When can the court ‘intervene’ to rectify the contents of a will

Answer 28

Under s.20 of the Administration of Justice Act 1982, the court has power to rectify a will if it is satisfied that it is expressed in a way which fails to carry out the testator’s instructions in consequence of (a) a clerical error or (b) a failure to understand those instructions.

Question 29

When must mutual wills be made in writing?

Answer 29

When they concern land

Question 30

Later will / codicil is executed which does NOT contain an express revocation clause: what is the position wrt past wills / codicils?

Answer 30

If the later will or codicil does not contain an express revocation clause, as in this case, it will impliedly revoke the earlier will or codicil to the extent that it is inconsistent with the provisions of the earlier document.