amendment and revocation (week 9)

Question 1

how can an unexecuted document be incorporated into a will?

Answer 1

by referring to it in the will

Question 2

what is the 3 main criteria that must be satisfied to successfully incorporate an unexecuted document into a will?

Answer 2

a) document must exist when the will is executed (or at the time a later codicil is made - because the codicil re-publishes the original will)
b) the will must refer to the doc as being in existence at the time of execution
c) doc must be clearly identified in the will

Question 3

what is the purpose of STEP (society of trust and estate practitioners)?

Answer 3

they are a professional association which promotes best practice on matters such as will drafting and estate administration

Question 4

do letters of wishes form part of the will?

Answer 4

no they do not and there is no intention for these documents to be incorporated into the will

they are not legally binding (merely serving as guidance)

Question 5

what are the 3 different ways that a person can alter their will?

Answer 5

• create an entirely new will
• a codicil to an existing will (formal testamentary document amending the will)
• make manuscript amendments to their original will

Question 6

what does no obliteration mean when amending a will by hand?

Answer 6

where the text has been crossed out in such a way that the original text is illegible

Question 7

what does no interlineation mean when amending a will by hand?

Answer 7

where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.

Question 8

what does no other alterations made mean when amending a will by hand?

Answer 8

including additions added to the end of the will, a strike through of text which is still legible

Question 9

what is the general rule in relation to post-execution alterations of a will?

Answer 9

amendments made after the will is executed are invalid and unenforceable. the alterations have no effect and the original wording is given effect to.

Question 10

are alterations made prior to executing the will valid?

Answer 10

yes they are valid and are enforceable

Question 11

what is the presumption on the timing of an alteration made to the will?

Answer 11

there is a rebuttable presumption that an alteration was made AFTER execution (therefore, rendering the alteration invalid)

Question 12

if an alteration is executed like a will but the witnesses are not the same people that witnessed the will - are the alterations valid?

Answer 12

yes, the alterations are valid (it doesnt matter if the witnesses are not the same people who witnessed the will)

Question 13

if obliteration occurs (wording is covered over or cut out) is the alteration effective?

Answer 13

yes it is effective as it is treated as having been made by the testator with an intention to revoke.

Question 14

what is the meaning of apparent = before such alteration shall not be apparent?

Answer 14

the original wording can be deciphered by natural means (reading it or holding it to the light ect) but this does not mean infra-red technology and without the need for extrinsic evidence (eg, draft documents)

Question 15

if a testator makes the obliteration with conditional intent to revoke the gift can extrinsic evidence be used?

Answer 15

yes, extrinsic evidence is permitted to show the original wording (a fresh copy of the will containing the original wording would be admitted to probate).

Question 16

what is a codicil (amending the will)?

Answer 16

it is 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 17

what are the 3 situations where using a codicil to amend a will may be appropriate?

Answer 17

1. create new provisions in a will
2. edit existing provisions in a will
3. revoke provisions in a will

Question 18

what is the presumption with a codicil on revocation of a will?

Answer 18

if there are no express words of revocation there is a presumption (can be rebutted) that the terms of the original will remain where possible. codicil will only revoke earlier will to the extent where there are inconsistency between them.

Question 19

what does it mean when codicils republish a will?

Answer 19

when a codicil is executed it acts to republish the will to which it expressly refers. the will is given effect to as if it had been executed on the date on which the codicil was executed.

Question 20

can a codicil revoke only part or whole of an earlier will?

Answer 20

a codicil can do both. if it expressly revokes a previous will in full and the codicil doesnt contain any new terms then the testator will effectively be interstate.

Question 21

can a codicil revive an earlier will?

Answer 21

yes it can re-publish a will that is currently valid and not previously been revoked but it can also revive a will that was revoked previously if this is the testator’s intention.

Question 22

how can a person revoke a will by destruction?

Answer 22

must be physical act of destruction, just writing ‘revoked’ on the will is not effective

Question 23

does a person need capacity and intention to revoke a will for the revocation to be valid?

Answer 23

yes need both capacity and intention to revoke a will otherwise the revocation is not valid and the will is still effective.

Question 24

if a person destroys a copy of a will - is their will effectively revoked?

Answer 24

no, need to destroy the original rather than a copy

Question 25

can a person destroy only parts of their will to revocate it?

Answer 25

yes, can destroy parts of a will for a partial revocation by destruction

Question 26

what is the presumption if parts of a will are missing?

Answer 26

testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise

Question 27

what is the presumption if the will is damaged?

Answer 27

testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise

Question 28

who has the burden of rebutting a presumption of revocation?

Answer 28

those administering the estate of the deceased

Question 29

what is a mutual will?

Answer 29

where one testator agrees with another to each make a will on terms agreed between them.
both agree that neither of them will amend their will without the consent of the other

Question 30

what happens if one testator of a mutual will attempts to revoke their will?

Answer 30

equity may impose a constructive trust over that testator’s property on the terms previously agreed in the mutual will and limit the effect of any new will

Question 31

what is a mirror will?

Answer 31

the wills of a couple mirror each other

Question 32

what happens if testator revokes a mirror will?

Answer 32

they can revoke it as there is no agreement not to revoke the will later and no constructive trust is imposed

Question 33

what is the law on implied revocation by a will?

Answer 33

if a later will doesnt contain an express revocation clause then where there are inconsistencies between wills the later will impliedly revoke the earlier and so the later will is given priority

Question 34

what type of wording is needed for an express revocation by will?

Answer 34

I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will

Question 35

what is the effect of a person getting married on the validity of their will?

Answer 35

when a person marries this automatically revokes in full any will (and codicil) made prior to marriage (even if this is not the testator’s intention.

Question 36

can a will be drafted so that their will is not effected when they marry?

Answer 36

yes, a will can be dated in contemplation of marriage/civil partnership and therefore, their will is still valid after they marry

Question 37

what are the requirements needed for a will to be in contemplation of marriage?

Answer 37

• must name their future spouse
• identify the intended ceremony.
• must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage

Question 38

what is the effect of divorce on the validity of a will?

Answer 38

the court order confirming the divorce (final order) or dissolution automatically operates as a limited/partial revocation