Alteration, amendment, and revocation of wills

Question 2

On to Alteration, Amendment, and Revocation:

When will a general alteration be valid?

Answer 2

If it can be proved it was made before execution, provided that the will reads naturally

Question 3

What is the situation where a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?

Answer 3

The original gift applies

Question 4

What is the presumption given to unattested alterations?

Answer 4

They are presumed to have been made after execution, unless merely filling in a blank space in a will form

Question 5

What is the effect of an alteration making the original gift illegible?

Answer 5

This is an obliteration and the original gift fails completely

Question 6

What is a codicil?

Answer 6

Brief document that adds to, amends, or partially revokes an existing will

Can be used to remedy a gift which was void because the beneficiary witnessed the will

Question 7

What are the three requirements of a codicil?

Answer 7

1. Must make reference to the will
2. Must satisfy the formalities of a will, i.e. writing signed and witnessed
3. Clause should be included confirming the unamended part of the will

Question 8

What are the two ways a revocation of a will can occur?

Answer 8

1. By law
2. Deliberate act of the testator

Question 9

What are the two situations in which a will is revoked by law?

Answer 9

1. Marriage/civil partnership
2. Divorce, nullity, or dissolution

Question 10

What is the effect of a testator marrying after executing a will?

Answer 10

The will is revoked unless it appears, from the will, that 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

Question 11

What is the effect of divorce, nullity, or dissolution on a will?

Answer 11

Will is partly revoked as to the appointments/gifts to the former spouse/civil partner as they are treated as having died on the date of divorce/dissolution

The remainder of the will is valid

Question 12

What gift provisions in a will will be relevant upon divorce/dissolution, and why?

Answer 12

Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because they are deemed to have done so

Question 13

What is required to exempt a will from these divorce/dissolution rules?

Answer 13

Contrary intention expressed in the will

Question 14

What are the two ways a testator can revoke a will through deliberate act?

Answer 14

1. Executing a later will/codicil
2. Destruction

Question 15

In addition to a later will/codicil, what also satisfies this revocation option?

Answer 15

Any writing declaring an intention to revoke the will, and executed with the same formalities (I won’t repeat them again)

Question 16

What is the extent to which a later will/codicil will revoke an earlier will?

Answer 16

Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will

Question 17

How is a will revoked by destruction?

Answer 17

Burning, tearing, or otherwise destroying the will by the testator (or someone at T’s direction and in their presence) with the intention of revoking the will

Question 18

Put simply therefore, what is required for a will to be revoked by destruction?

Answer 18

Intention to revoke

Question 19

What is the situation if only part of a will is destroyed?

Answer 19

Whether or not the will is fully revoked, or only revoked to the extent of the part that was destroyed will depend on the importance of the part which was destroyed, e.g. the signature page being destroyed will revoke the entire will if intent to revoke is evident

Question 20

Regarding intention to revoke, what is the presumption if a will is found mutilated at the date of death?

Answer 20

It is rebuttably presumed to have been revoked with the testator’s intent

Question 21

What is the other situation where a will is rebuttably presumed to have been revoked?

Answer 21

Where a will was last known to be in the testator’s possession, but cannot be found at the date of death

Question 22

How does the court-applied doctrine of dependent relative revocation save a will?

Answer 22

If the testator’s intention to revoke the will was conditional on a future event, and the event did not take place, the original will, even if destroyed, may be valid if it can be reconstructed

Question 23

What are mutual wills?

Answer 23

Where two or more people make wills with the same clauses conferring reciprocal benefits, further to an agreement between them to make such wills and not revoke them without the consent of the other

Question 24

What is the effect of a mutual will conferring a constructive trust in favour of the other party?

Answer 24

If one testator dies, and the other changes their will, a beneficiary harmed by this can apply to court for an order that the recipient of the changed gift transfers it to the original beneficiary

Question 25

For a document to be incorporated by reference into a will, what two requirements must be met?

Answer 25

1. Document must exist at the date of the will
2. Document must be referred to in the will

Question 26

Therefore, references to what documents will not be incorporated into a will?

Answer 26

Documents expressed to be created after the fact, e.g. lists of items, or subsequent references in diaries