Alterations, Amendments and Revocation Flashcards
What is the rebuttable presumption for alterations that are signed?
That it was made prior to the execution of the will
What is the best way to show proper execution of an alteration?
Signature in the margin or near the alteration
What is the rebuttable presumption made about alterations that are not signed?
That it was made post-execution and is therefore not valid
How can you make an unsigned alteration valid?
Testator signs it with 2 witnessees
Do the alteration witnesses have to be the same as the original witnesses?
No
What are the 2 ways to make legit an unsigned alteration?
Sign by testator and 2 witnesses
Make a new will including the alteration, re-executed and confirmed by codicil
How can you rebut the presumption that the alteration was made post- execution?
Affidavit
Internal evidence in the will
Will blank spaces filled be presumed to have occurred before or after execution?
Before
What happens if there is an unattested obliterated alteration?
Wording apparent = will be ignored
Wording not apparent = wording revoked and will admitted to probate without it
How can you evidence what the original wording was of an obliteration unattested?
You cannot, court will not allow evidence
What happens if something is obliterated by mistake e.g., a spill?
Court will allow extrinsic evidence and non-natural means
What happens if something is obliterated but with conditional intent (e.g., cross one thing out and write another thing on top)?
Court allows extrinsic evidence, will accept that the new gift is conditional on the old one being crossed out
What is a codicil?
Makes an edit to the will
What is the effect of a codicil?
It ‘republishes’ the will from the date of it
What are the 4 established methods of will revocation?
Later will or codicil
Written intention to revoke
Destruction
Marriage/civil partnership
What happens if there is no express revocation clause in a later will?
It is impliedly revoked to the extent that it is different from the OG
If the newest will is destroyed and an older revoked one still exists can that one be used instead?
No
What happens if an updated will intending to revoke a previous will is void e.g., it was created from duress?
The previous will stands
What are the formalities for a written will revocation?
Writing, testator and 2 witnesses
How destroyed does a will have to be to be properly revoked?
Obliterated completely
Can somebody else effectively destroy a will for the testator?
Yes, if it was by his direction and was the testators intention
Can a will be effectively revoked by destruction if there was no intention to revoke the will by that act?
No
Do you need capacity to revoke by destruction?
Yes
What presumption is there if a will cannot be found?
That it was destroyed
