Amendment and Revocation of Wills (and Codicils)

Question 1

what are the 3 methods of amending will?

which is the most advisable option?

Answer 1

1- make a new will

2- codicil to existing will = formal testamentary document

3- manuscript amendments to original will (hand alterations)

–> making a new will is advisable despite the costs over a codicil and esp. a manuscript amendment to prevent inconsistency and future challenge

Question 2

manuscript alterations by hand - when are they valid? when are they invalid? what is the presumption?

Answer 2

alterations made before execution are valid

alterations made after execution are not valid unless they are attested or are obliterations

but there is a presumption that an alteration is made AFTER execution - so:

• unattested alterations without proof of date are invalid
• if the alteration was made before execution, for it to be valid then either (1) T must attest it, or (2) PRs can rebut the presumption by providing an affidavit of its date
• if the alteration was made after execution, T must attest it for it to be valid

Question 3

types of alterations (5)

Answer 3

1) Obliteration
2) Interlineation
3) Strike through of a text which is still legible (+ replacing it with something else)
4) Obliteration as a conditional revocation
5) completion of a blank space

Question 4

what is an obliteration? when will it be valid?

Answer 4

• Obliteration = text has been crossed out in a way that the original wording is no longer apparent via natural means (reading/holding to the light but not infrared tech) and without the need for extrinsic evidence (e.g., draft docs or new copy of the original will)
• an obliteration is treated as having been made with an intent to revoke - so it will be valid (regardless of when it was made and whether it was attested)

Question 5

when will extrinsic evidence be permitted to be shown to challenge an obliterartion?

Answer 5

• if it is successfully shown that T did not intend to revoke the gift or a third party made the amendment = the obliteration is invalid and extrinsic evidence can be permitted to show the original gift and the original B can get their original entitlement
• extrinsic evidence = draft documents or a new copy of the original will

Question 6

what is interlineation? is it valid or invalid?

Answer 6

Interlineation = writing is inserted between existing lines of the document to add something new

Validity:
- valid if made before execution (but if unattested, there is presumption of amending after execution so proof of date via affidavit is needed)
- not valid if made after execution and unattested (so the original gift is given effect to)
- valid if it is attested

Question 7

what is strikethrough? is it valid or invalid?

Answer 7

strike through of a text which is still legible (alone or replacing it with something else)

Validity:
- valid if made before execution (but if unattested, there is presumption of amending after execution so proof of date via affidavit is needed to rebut)
- not valid if made after execution and unattested (so the original gift is given effect to)
- valid if it is attested

Question 8

what is obliteration as a conditional revocation? is it valid or invalid?

Answer 8

• Obliteration as a conditional revocation = T attempted to substitute another figure for unknown original wording
• If the substitution is attested or proved to be made before execution via affidavit evidence, then the obliteration and substitution will be valid and given effect to
• If the substitution is unattested or it cannot be proved to be made before execution, the substitution will be invalid. The court will then find that the obliteration revoking the original gift was made conditional on the substitution succeeding - but seeing that the substitution failed, the original gift can be given effect to via extrinsic evidence

Question 9

what is completion of a blank space? is it valid or invalid?

Answer 9

completion of a blank space is adding wording into a blank space [ ]

it is presumed to have been completed before execution so it is valid (no attestation needed)

Question 10

advice to testator wanting to make manuscript amendments

Answer 10

• execute any amendment in the same way as a will (signing + 2 witnesses) even if the amendment is made before the will is executed as a whole (this removes the requirement to prove when the alterations were made)
• confirm manuscript amendments by either making a new will or executing a subsequent codicil that affirms the will it amends ==> in either case, express reference must be made to the manuscript amendment to rebut the presumption that alterations were made after execution
• amendments are appropriate only if they have little impact on meaning of will eg, typo, change address
• amendments are appropriate only if they are urgent - e.g.., T is in hospital or due to travel abroad

Question 11

what alterations will be given effect to? (5)

Answer 11

(1) alterations made before execution (but note presumption that unattested alterations are made after execution - so either attest them or produce affidavit as to date of alteration to rebut)

(2) obliteration (treated as having an intent to revoke - unless shown otherwise)

(3) attested alterations

(4) completion of a blank space (presumed to have been completed before execution - attestation not needed)

(5) alteration (done before or after execution) which is subsequently confirmed by re-execution, affidavit evidence of date, or codicil with specific reference to the alteration

Question 12

what alterations are NOT given effect to? (5)

Answer 12

1. unattested alterations made after execution (provided the original gift is still apparent)
2. unattested alterations made before execution with no proof of date to rebut preumption of having been made after execution
3. obliterations without intent to revoke (after it is challenged and extrinsic evidence is provided to show the original gift)
4. obliterations made by 3rd parties (after it is challenged and extrinsic evidence is provided to show the original gift)
5. obliterations as conditional revocation (after it is challenged and extrinsic evidence is provided to show the original gift)

Question 13

what is a codicil?

Answer 13

a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together

Question 14

what are the requirements for a valid codicil?

Answer 14

same as wills:

1. testamentary capacity
2. knowledge and approval
3. validly executed (s9 WA)

Question 15

what is the effect of a codicil? (2)

Answer 15

1. a codicil republishes a prior will = the will is given effect to as if it was executed on the day the codicil was executed
2. the presumption is that a codicil revokes the original will only to the extent there is inconsistency - so:

• affidavit evidence can be used to rebut this presumption
• avoid the inconsistency with the prior will by expressly stating the extent that T confirms or revokes the earlier will and any previous codicils

Question 16

what can the testator use a codicil for? (3)

Answer 16

1. add a provision to the will - e.g., add a legacy
2. amend a provision in a will - e.g., change the value of a legacy
3. revoke a provision in a will - e.g., remove a particular beneficiary’s entitlement

BUT = if T wants to make several or significant changes, advise them to execute a new will instead to remove the risk of inconsistency

Question 17

codicil ‘republishes’ will = what problems can a codicil correct?

Answer 17

will is given effect to as if it was executed on the day the codicil was executed

effect:

1. when construing a will, use the date of the codicil for subject matter or people defined as at the date of execution
2. if a beneficiary or spouse of a beneficiary witnesses original will s15 denies their inheritance –> BUT if the codicil is witnessed by non-beneficiaries then the gift to the beneficiary can be given effect to (note = s15 also applies to witnesses of codicils)
3. unattested manuscript amendments will be confirmed by a later codicil (codicil must expressly refer to the amendment otherwise extrinsic evidence will be needed)

Question 18

can a codicil revoke or revive a previous will?

Answer 18

• revocation = codicil can revoke a will wholly or partly - MUST expressly refer to the extent of revocation otherwise the codicil only revokes the will to the extent of inconsistency
• revival = a codicil CAN revive a will that was previously revoked unless it was revoked via destruction
• but a codicil can only re-publish a will that is currently valid not one that was revoked

Question 19

how can you properly draft a codicil? (7)

Answer 19

1. expressly mention changes to T’s name or address
2. affirm parts of the original will with T wants unchanged
3. ensure that you properly cross-reference the date of the original will or earlier codicil
4. if there are also previous codicils that are valid, expressly refer to them
5. make sure the effect of the codicil makes sense when read in conjunction with the will or earlier codicil
6. correctly refer to clause numbers in the will or earlier codicils
7. expressly state to what extent the will / earlier codicil is revoked

Question 20

methods of revoking wills/clauses in wills (9)

Answer 20

1. destruction by T with intention to revoke
2. destruction by 3rd party in T’s presence and at T’s direction
3. express revocation clause in later will or codicil
4. later will or codicil has no revocation clause but is inconsistent with prior will = earlier will is only revoked to the extent of inconsistency with later will or codicil
5. if original will is missing = presumption of destruction with intent to revoke (unless no intention to revoke is shown - then a copy of the will is allowed)
6. if original will is damaged = presumption of destruction by T with intent to revoke (unless no intention to revoke is shown - then a copy of the will is allowed)
7. testator’s subsequent marriage = revokes any prior will and codicil
8. testator’s divorce = treats the spouse / CP as having pre-deceased the testator
9. a valid alteration

Question 21

destruction of wills:

when is destruction valid?
can another person destroy T’s will and the revocation still be valid?

Answer 21

destruction is valid if =

• testator had intention to revoke the will, AND
• physical act of destruction (burning/tearing) NOT just writing ‘revoked’, AND
• ORIGINAL will is destroyed NOT a copy, AND
• testator has testamentary capacity

if another person destroys the will = ineffective unless it is at T’s DIRECTION AND in T’s PRESENCE

Question 22

what happens if T tries to destroy a will but does not destroy all of it?

Answer 22

if T does not destroy all parts of a will =

1. if the will can operate effectively with the remaining sections = revocation is partial
2. if the will cannot operate effectively with remaining sections (eg, signature/attestation destroyed) = the whole will is revoked

Question 23

if a will is missing:

what is the presumption?
how can this be rebutted?
what is the effect of successfully rebutting the presumption?

Answer 23

• Presumption = if T is known to have made a will/ codicil but upon T’s death the original document is missing, T is presumed to have destroyed their will with an intention to revoke it, unless evidence suggests otherwise
• Presumption of revocation can be rebutted by showing that either:

1. T did not intend to revoke the will, or
2. T did not carry out or give directions to destroy, or
3. a validly executed will was in existence when T died but was lost AFTER T died

• If sufficient evidence is given to rebut the presumption –> a COPY of the will can be admitted into probate and will operate

Question 24

if a will is damaged:

what is the presumption?
how can this be rebutted?
what is the effect of successfully rebutting the presumption?

Answer 24

• Presumption = if T is known to have made a will/ codicil but upon T’s death the original document is damaged, then T is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise
• Presumption of revocation can be rebutted by showing that either:

1. T did not intend to revoke the will, or
2. T did not carry out or give directions to destroy, or
3. a validly executed will was in existence when T died but was damaged AFTER T died

• If sufficient evidence is given to rebut the presumption –> a COPY of the will can be admitted into probate and will operate

Question 25

if a will is revoked by destruction, will codicils to that will also be revoked?

Answer 25

not necessarily

Question 26

will the following clause in a will be effective to revoke prior wills?

“I hereby declare this to be my last will”

Answer 26

no

Question 27

what is required for a will to revoke prior wills and/or codicils?

Answer 27

• express words of revocation are required in the new will
• example: I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will

Question 28

how does a new will or codicil impliedly revoke a prior will or codicil?

Answer 28

If the new will/codicil does not contain a revocation clause, there is a presumption that the new will/codicil revokes the older will/codicil but only to the extent they are inconsistent

Question 29

Mutual Will

Answer 29

• 2+ identical wills that leave all assets to the reciprocal party
• eg, spouses make wills stating the survivor of them inherits the estate of the first to die
• implies an agreement not to revoke the will
• If one of the testators tries to revoke the will = equity imposes a constructive trust over the testator’s property on the terms previously agreed
• effectively = mutual wills cannot be revoked/changed
• ==> wills are more likely regarded as mirror not mutual in the absence of STRONG evidence that they intended to make mutual wills

Question 30

Mirror will

Answer 30

• wills of testators reflect each other
• does not imply that there is an agreement not to revoke the will later + no constructive trust imposed (unlike mutual wills)
• testators can revoke their will at any time
• ==> wills are more likely regarded as mirror not mutual in the absence of STRONG evidence that they intended to make mutual wills

Question 31

what is the effect of marriage on a will?

Answer 31

• marriage automatically revokes in full any will (and codicil) made prior to the marriage, even if this is not the testator’s intention
• BUT wills in contemplation of marriage = can be entered into if T plans to marry after executing their will and does not want it to be revoked

Question 32

what is a will in contemplation of marriage and what are the 3 requirements to create one?

Answer 32

wills in contemplation of marriage can be entered into if T plans to marry after executing their will and does not want it to be revoked

Requirements to make a valid will in contemplation of marriage =

1. will must name the future spouse/CP
2. identify the intended ceremony
3. expressly state whether or not the testator intends the will to be revoked on the event of the marriage/CP

Question 33

what is it not possible to do with a will in contemplation of marriage? (2)

Answer 33

It is not possible to avoid revocation by making a will in contemplation of:

• a hypothetical marriage (e.g., wording stating that the will is not revoked if T should marry in the future)
• a marriage to one person but then marry someone else

Question 34

if will is in contemplation of marriage but then marriage does not happen, what happens to the will?

Answer 34

• the will takes effect even if marriage does not happen
• unless there is express wording to the contrary (eg, ‘this will is conditional on the marriage’)

Question 35

can a will state that it will remain valid even in the case where the testator marries in the future?

Answer 35

• no - a testator cannot avoid revocation by marriage in contemplation of a future hypothetical marriage
• marriage will automatically revoke a prior will unless the will specifically states that marriage to a specified person in a specified ceremony will not revoke the will

Question 36

example clause for a will in contemplation of marriage?

Answer 36

I am expecting to marry [FULL NAME OF INTENDED SPOUSE] ([DEFINED TERM FOR INTENDED SPOUSE]). My marriage to [her OR him] does not revoke this will. This will is [effective even if I die before marrying OR not effective until I marry] [DEFINED TERM FOR INTENDED SPOUSE].

Question 37

what is the effect of divorce on a will? (5 points)

Answer 37

• the court order confirming divorce automatically operates to treat the former spouse/CP as having died on the same day as the court order
• effect =

1. appointing a former spouse as executor is not effective
2. gifts to former spouse in the will fail

• THIS IS UNLESS CONTRARY INTENTION IS SHOWN = eg, the will expressly states that T wants the spouse to inherit notwithstanding any divorce
• this only effects wills in existence at the day of court order, not wills made after divorce
• this does not preclude former spouse/CP from making claim under IPFDA