Amendments and Revocation Flashcards
What are the three methods of amending a will?
- Amending the will itself (“manuscript amendments”);
- Codicils
- Revocation
What is the presumption in relation to manuscript amendments?
They are presumed to have been made AFTER execution. Any amendment made after execution is treated as invalid and unenforceable and the original will is given effect to (s.21 WA 1837).
How can valid manuscript amendments be made?
- Rebut ‘after execution’ presumption by producing affidavit that amendment was made before execution;
- Attest the alteration and execute it in the same way as a will;
- Blank space amendments;
- Obliterations with Intention to Revoke.
How is a valid manuscript amendment made?
Where the testator makes the amendment and executes that amendment like a will (i.e signed by the testator or in his presence and at his direction in the presence of 2 witnesses who then also sign).
- Can be any two witnesses, need not be same ones as witnessed o/g will.
- If alteration itself not executed, testator should re-execute amended will as a whole or execute a codicil (both with express reference to manuscript amendments).
How is a blank space amendment validly made?
Where there is a blank space which is then filled out, this rebuts the presumption that the amendment was made after execution.
What is a valid obliteration with intention to revoke?
Where the original wording is not “apparent” because it has been obliterated, covered over or cut out, the obliteration is treated as made with intention to revoke + alteration is effective.
“Apparent” = original wording can be deciphered by natural means, e.g reading it or holding it to the light.
Not Apparent = where infra-red technology, external evidence or other unnatural means are required to decipher the original wording.
* If shown that the testator did not intend to revoke or third party was the one to make the amendment, extrinsic evidence can be used to establish + give effect to the original clause.
What if an obliteration is made with only conditional intent to revoke?
i.e intending only to change the amount of the gift / who it is to.
If substitution = substitution must comply with formalities for valid alteration (s.9 WA 1837).
If substitution not effective (i.e presumed made after execution), original gift should be given effect to + extrinsic evidence permitted to establish original wording. Fresh copy of will containing o/g wording submitted to probate.
When are manuscript amendments most appropriate?
- Where changes required urgently (e.g testator goes into hospital / abroad)
- Where amendments inconsequential (e.g to correct spelling error or change address).
What is a codicil?
A formal testamentary document that amends, rather than replaces, an earlier will. Bot the will and subsequent codicils are active and are intended to be read together.
What is a valid codicil and what is it most useful for?
Must comply with requirements of o/g will:
1. Testamentary capacity at time of execution (though Parker v Feldgate applies);
2. Knowledge and approval
3. Compliance with s.9 WA 1837.
Codicils should not really be used for significant / multiple changes. No maximum number but avoid making too many.
What is the effect of a codicil?
The will is “republished”: when applying the general rules of construction, the “date of execution” is the date the most recent codicil was executed, not the will.
How can you correct the will using a codicil?
- Gift void under s.15 WA 1837: If beneficiary or beneficiary’s spouse witnessed will (and gift to them therefore void) but later codicil witnessed by different people = corrects will.
- Invalid Amendments: If will or previous codicil contains unattested manuscript amendments, these can be confirmed by later codicil.
O/g will or previous codicil not duly executed: if new will or codicil compliant with s.9, rectifies it.
What is the effect of revocation in a codicil?
- That, if revoking whole / part of will, codicil contains replacement terms; otherwise, testator may be left intestate.
- Codicil can revive previously revoked will but preferable to make new will.
- Revoking a codicil which revoked a will / earlier codicil does not revive that will / earlier codicil.
- Codicil only revokes will to the extent that there are inconsistencies between them.
What are the 4 methods of revocation?
- By a later will or codicil
- Destruction or effective alteration
- Subsequent marriage
- Divorce
How can a will be revoked by a later will or codicil?
Express wording in the will, including the word “REVOKE”, i.e: “I hereby REVOKE all former wills and testamentary dispositions [and codicils] and declare this to be my last will”.
