ALTERATION, AMENDMENT,AND REVOCATION OFWILLS Flashcards
When Was Alteration Made?
**A key fact to ascertain is when the alteration was made. The alteration will be valid if it can be proved that it was made before execution. This can be shown through statements from the witnesses or the initials of the testator and their wit-nesses adjacent to the alteration, provided that the will reads naturally after the amendment.
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If Made After Execution Without Proper
Formalities
- If you are presented with a will with words crossed out and it can’t be proved the alteration occurred before execution or with proper formalities, as stated above, the original gift is to apply.
- Generally, an unattested alteration is presumed to have been made after execution unless it is filling in a blank space in a will form (such as “I Terry Testator being of sound mind . . .”. The solicitor’s starting point is to see if they can make out** the original words by ‘natural means’, f**or example,by using a magnifying glass. If the original words are appar-ent, then they may be admitted to probate rather than the amendment, but if the original words are not apparent, then the court will admit the will with a blank space where the words are obliterated. **
EXAMPLE
Sachin makes a will containing a clause leaving “£100,000 to my daughter, Mendi”. He later decides to change the gift
to Mendi. The outcome of this depends on how it is done:
1) Sachin draws a line through “£100,000” and writes above it “£200,000”. This is an unexecuted alteration. The gift remains one of £100,000 to Mendi.
2) Sachin draws a line through “£100,000” and writes above it “£200,000”, but this time he signs his name next to it and gets two people to witness his signature. This is an executed alteration, and the gift is amended to one of £200,000 to Mendi.
3) Sachin draws a thick line through “£100,000” so that the
original wording is illegible. This is an obliteration and will be treated as revoking the original gift to Mendi. It is now a gift of nothing. If Sachin wanted to add “£200,000” above the obliteration, this would be efective only if it is signed, initialled, and witnessed as in 2) above.
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CODICILS
A codicil is (normally) a brief document that adds to, amends, or partially revokes an existing will. It is worth noting that:
*The codicil must make reference to the will;
*The requirements for a valid will apply equally for a valid codicil;
*A clause should be included in the codicil **confirming the unamended part of the will; **and
*A codicil may remedy a gift which was void because the beneficiary witnessed the will.
REVOCATION
A will may be revoked at any time by the testator, provided they have retained testamentary capacity.
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Revocation
AutomaticallyThrough the Law
a.Marriage or Civil Partnership
b.Divorce, Dissolution, or Nullity
Marriage or Civil Partnership
If a testator marries after executing a will, the will is revoked unless it appears from the will that, when it was made, the testator was expecting to marry a particular person and that
they intended that all or part of the will should not be re-voked by that marriage. An express statement to this effect should be included in the will.
EXAMPLE
“I declare that I make this will expecting to be married to X and that I intend that this will shall not be revoked by my marriage to the said X and I further declare that this will is [not] conditional upon on my marriage to the said X actually taking place”.
If some of the provisions of a will are to be revoked by the marriage, that intention should be apparent from the will.
EXAMPLE
“I declare that I make this will expecting to be married to X and that I intend that until my said marriage the provisions of Schedule 1 constitutes my will and upon my said marriage Schedule 1 is revoked and Schedule 2 constitutes my will”.
Divorce, Dissolution, or Nullity
- A will** is partly revoked** by the dissolution of a civil partner-ship or a decree absolute of divorce or nullity.
- The law treats the former spouse or civil partner **as having died on the date of the divorce **or dissolution.
- If the former spouse or civil partner was appointed as an executor or trustee in the will,
the appointment will be ineffective. - Any gifts to the former spouse or partner are revoked, and the property will not pass to them.
- Any substitutional provisions in the will which are to take efect if the spouse or civil partner has predeceased the testator will be relevant if the marriage or civil partnership is dissolved or annulled.
- The remainder of the will remains valid. These provisions do not apply on separation.
- However, divorce will not amend a will if a contrary intention is stated.
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Revocation by Deliberate Act of the Testator
a.Executing a LaterWill or Codicil
b.Destruction
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Executing a LaterWill or Codicil
- A will is revoked (wholly or partially) by a later will or codi-cil, or “by some writing declaring an intention to revoke the same and executed in the manner” of a will.
- However, a later will or codicil** impliedly revokes** an earlier testamentary dispo-sition only to the extent that it is** inconsistent** with or merely repeats the terms of the earlier document.
- For the avoidance of doubt, it is usual for a will to contain an express revocation clause.
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Destruction
- A will is also revoked by “burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking
the same”, per the Wills Act 1837. - Merely writing “cancelled” or “revoked” across the will is not enough. Nor is putting a line through parts of it. If only part of the will is destroyed, the destruction may result in the revocation of that part of the will only or a **complete revocation, if a sufficiently substantial or vital
part (for example, the testator’s or witnesses’ signatures) was destroyed. - Destruction by someone other than the testator must, to be efective, be done in the testator’s presence and at the testator’s direction.
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Intention to Revoke
- The testator must have the intention to revoke at the time of the will’s destruction. The necessary mental capacity is the same as that required for the making of a will.
- *If a will is found mutilated at the date of death, this will be rebuttably presumed to have been done by the testator with the intention of revoking it.
- There is a further rebuttable presumption that a will last known to have been **in the testator’s possession, **but which cannot be found at the date of death, has been destroyed by the testator with the intention of revoking it.
Dependant Relative Revocation
Occasionally, the court may apply the doctrine of dependantrelative revocation to save a will. This could occur when thetestator’s intention to revoke their will was conditional upona 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 it was destroyed—if it can be reconstructed from acopy or draft.
revocation of will
MUTUAL WILLS
- These are wills made by two or more persons, usually with the same clauses and conferring reciprocal benefts, further to an agreement between them to make such wills and not to revoke them without the consent of the other.
- There is a contract between the parties that the wills are to be irrevo-cable and will remain unaltered. This agreement creates a constructive trust in favour of the benefciaries.
- This means that if one of the two testators dies and the other testator then changes their will, a benefciary harmed by the change may apply to the court for an order to the recipient of the changed gift to transfer it to the person who would have been the benefciary under the original will. Note that such wills are generally avoided by practitioners.
