Alteration and amendment of wills Flashcards
What are the conditions for incorporating documents into a will?
- Document must exist when will is executed.
- Will must refer to the document as being in existence at the time of execution.
- Document must be clearly identified in the will.
What happens if a document is validly incorporated into a will?
It becomes part of the will even though the document itself does not comply with s.9 Wills Act 1837.
The document will be made public along with the will once it is admitted to probate.
What is the best way of including an inventory or detailed list of goods in a will?
As a schedule (rather than by incorporation)
What are STEP provisions?
They can be incorporated to provide the administrators with nationally recognised provisions.
More common than drafting lengthy clauses
What is a letter of wishes?
It expresses how the testator would like trustees to manage their discretionary powers.
Not legally binding
What should testators generally do before making alterations to a will?
Testators should generally make a new will.
The cost of making a new will is minimal compared to costs incurred later if terms are poorly drafted.
What is the general rule regarding hand alterations made after the execution of a will?
Amendments made after the will are invalid and unenforceable.
c.f Alterations made prior to execution form part of the will.
What presumption exists regarding alterations made to a will?
There is a rebuttable presumption that an alteration was made after execution.
How can one provide evidence that the clause was amended before execution?
One could provide affidavit evidence of the state and condition of the will at the time of execution.
What is required for alterations to be valid in a will?
Alterations should be attested by a signature of the testator and two trustees in the margins.
They do not have to be the same people who witnessed the will.
Where should signatures be placed in relation to alterations in a will?
Signatures should be next to the alteration.
What is the benefit of attested alterations in a will?
Attested alterations remove the requirement to prove when the alterations were made.
If amendments are not executed, what is the other way in which they can be deemed valid?
- re-executing the will as a whole
- executing a subsequent codicil that affirms the will
In both cases, express reference to the manuscript amendments is required
What is the presumption when a blank space has been completed in a will?
There is a presumption that this occurred before execution - therefore valid.
What happens if the original wording of a will is obliterated?
It will still be effective if the original wording is not apparent because it has been obliterated, covered over, or cut out.
Extrinsic evidence can be adduced to show that the testator did not intend to revoke/amendment was made by a 3P
What if there is an obliteration with an alternative provision next to the obliteration?
- This shows conditional revocation
- Extrinsic evidence will be permitted to try and determine what the original wording was.
- The amendment will not be valid - the beneficiary will not receive the updated sum.
When are manuscript changes appropriate in a will?
- When amendments have no impact on interpretation or meaning.
- If changes must be made urgently, and a codicil/will cannot be prepared
What is a codicil?
A codicil amends an earlier will rather than replaces it.
What legal requirement must a codicil comply with?
A codicil should comply with s.9 WA 1837.
What can a codicil be used for?
A codicil may be used to create, edit, or revoke provisions in a will.
What should be done for significant changes to a will?
Significant changes should advisably be done through a new will.
Is there a legal maximum for codicils?
There is no legal maximum for codicils.
What are common drafting pitfalls for codicils?
- Not expressly noting a change to the testator’s name and address
- Not affirming parts of the original will which remain unchanged
- Missing or incorrect cross reference to the date of the original will
- New codicil does not make sense when read in conjunction with the original will
- Incorrect clause numbering
What should a codicil expressly state?
A codicil should expressly state the extent to which the testator confirms or revokes their earlier will.
What happens if there is an inconsistency between a codicil and the original will?
Inconsistency leads to the codicil taking priority.
What if there are inconsistencies with regards to the references to the date of the will or number of codicils?
Affidavit evidence can be used.
How is a will republished with a codicil?
A codicil gives effect to a will as it had been executed on the date the codicil was executed.
Therefore, when applying the rules of construction, the date of the codicil is used - “gift to my grandchildren” now means grandchildren alive at date of codicil
Can a codicil correct problems with an earlier will?
Yes, a codicil can correct any problems with an earlier will.
Particularly useful for s15
What must a codicil do to confirm unattested manuscript amendments?
A codicil must expressly refer to the alterations it confirms.
If not, aditional evidence is needed to prove the amendment was made before the codicil was executed.
What happens if a codicil revokes all or part of a will but is then itself revoked?
If a codicil revokes all/part of a will, and the codicil itself is then revoked, this does not automatically reinstate the terms of the will that had been revoked.
What happens if a codicil revokes an earlier will but does not itself contain new terms?
The testator will die intestate
Can a codicil revive a previously revoked will?
Yes, a codicil can revive a will that was previously revoked. However, it is usually preferable to make a new will rather than revive a previously revoked will (could be confusion)
What happens to a will when a person marries?
Marriage automatically revokes in full any will made prior to marriage.
How can you avoid automatic revocation of a will on marriage?
- Draft the will in contemplation of marriage
- Must name the future spouse and intended ceremony
- Must expressly state whether or not the testator intends the will to be revoked on the event of marriage/CP
In the absence of express wording to the contrary, the new will takes effect even if the ceremony does not.
What does a court order confirming divorce or dissolution do to a will?
It automatically operates as a limited/partial revocation of the will, taking effect as if the former spouse or civil partner has died.
This may result in partial intestacy. However, this does not affect the right of the former spouse or civil partner to bring a claim through IPFDA 1975.
Can a will still provide for a former spouse or civil partner after divorce?
Yes, a will can make any provision for a former spouse or civil partner.
