Amendment & Revocation

Question 1

When are alterations to the will valid or invalid?

Answer 1

Valid – where made before execution.
Invalid – where made after execution.

Note – presumptions apply.

Question 2

What is the rebuttable presumption in relation to alterations to a will and how can it be overcome?

Answer 2

Presumption that alterations were made after execution.

1. Affidavit of state and condition of the will (although it would require executors to recall what the will looked like).
2. Attestation of the alteration (proximity required) – the presumption doesn’t apply.
3. Re-execution of the will or codicil (express reference to the amendments is required).

Question 3

What are the exceptions to the rule that unattested alterations are invalid (as presumed to be made after execution)?

Answer 3

1. Blank space is completed (can be rebutted by evidence to the contrary)/
2. Obliteration (completely covered) – intention to revoke.

Question 4

Meaning of “apparent”

Answer 4

Apparent – where the original wording of the will can be deciphered without external evidence like drafts i.e. holding it against the light.

Question 5

Conditional revokation

Answer 5

Where the testator attempted to substitute the wording in the will with new words i.e. substitute a figure. The court can determine that T only intended to substitute the figure if the amendment was successful. However, if the alteration is not valid i.e. unattested or no affidavit provided, the original gift remains (if ascertainable).

Extrinsic evidence is permitted to show the original wording.

Question 6

Implied revocation

Answer 6

Where a later will is inconsistent with an earlier one, the earlier one is revoked to the extent of inconsistency.

Question 7

Revocation by codicil

Answer 7

Normally it will only revoke part of a will and by express wording. If express words of revocation are missing, codicil only revokes to the extent of inconsistencies.

Note – revocation of a will by destruction will not necessarily revoke any codicils.

Question 8

Mutual wills

Answer 8

Two or more wills made on agreed terms that neither person will amend theirs without the consent of the other. If the surviving testator attempts to revoke their will, a constructive trust is imposed over their property on the terms previously agreed.

Question 9

Mirror wills

Answer 9

Wills with mirroring terms but no implication that there is an agreement not to revoke the will later (no constructive trust is imposed; survivor free to revoke).

Question 10

Conditional revocation

Answer 10

Revocation on the occurrence of a specific event i.e. divorce.

Question 11

Revocation by destruction – requirements

Answer 11

1. Physical act of destruction of the original will i.e. burning or shredding.
2. Intention to revoke.
3. Revocation must be by T (or someone under their presence/direction).
4. Testamentary capacity is required.

Note – whether partial destruction will result in invalidity will depend on whether the will can work i.e. whether it removes formalities. T is presumed to have carried out the act of destruction.

Question 12

When is revocation with an intention to destroy presumed?

Answer 12

1. When the will is missing (unless the contrary is proven).

Question 13

If a will has been teared up but not destroyed, has it been revoked?

Answer 13

No – destruction is required.

Question 14

Effect of marriage on previous will

Answer 14

Automatically revokes any will in full unless the will was made in contemplation of marriage.

1. Must name future spouse and identify intended ceremony.
2. Must expressly state whether T intends the will to be revoked on the event.

Note – not possible to avoid revocation by hypothetical marriage or marriage to someone else.