Amendments And Revocation

Question 1

What are the options for amending a will?

Answer 1

An entirely new will, a codicil to an existing will, or a manuscript amendment to the will.

Question 2

What is usually advised for a testator wanting to alter their will?

Answer 2

They should usually be advised to make a new will rather than making a codicil or hand amendments to their existing will.

Question 3

Who can make manuscript alterations to a will?

Answer 3

Only the testator can make manuscript alterations personally; alterations made by another person are invalid unless intended by the testator and made in their presence and at their direction.

Question 4

What types of amendments can be made to a will?

Answer 4

Obliteration, interlineation, and other alterations.

Question 5

What is obliteration in the context of a will?

Answer 5

Obliteration is when the text has been crossed out in such a way that the original text is illegible.

Question 6

What is interlineation in the context of a will?

Answer 6

Interlineation is when writing has been inserted between the existing lines of the document.

Question 7

What is the general rule regarding amendments made after a will is executed?

Answer 7

Amendments made after execution are invalid and unenforceable.

Question 8

What presumption exists regarding alterations made after execution?

Answer 8

There is a rebuttable presumption that an alteration was made after execution, rendering it invalid.

Question 9

How can a testator confirm manuscript amendments?

Answer 9

By re-executing the amended will as a whole or executing a subsequent codicil that affirms the will it amends.

Question 10

What is a codicil?

Answer 10

A codicil is a formal testamentary document that amends an earlier will, rather than replaces it.

Question 11

What must a codicil reference?

Answer 11

It must reference the original will it amends.

Question 12

What can codicils be used to do?

Answer 12

Create new provisions, edit existing provisions, or revoke provisions in a will.

Question 13

What is the risk of making multiple codicils?

Answer 13

There is a significant risk of error and inconsistency between the documents.

Question 14

What happens if a beneficiary witnesses a will?

Answer 14

The beneficiary is denied their inheritance unless the codicil is witnessed by different people.

Question 15

What is required for revocation by destruction?

Answer 15

The testator must physically destroy the will with the intention to revoke it.

Question 16

What happens if a will is missing after the testator’s death?

Answer 16

The testator is presumed to have destroyed their will with the intention to revoke it.

Question 17

What is an express revocation clause?

Answer 17

It ensures that all previous wills are revoked and there is only one valid will at any one time.

Question 18

What is mutual wills?

Answer 18

Mutual wills are where two testators agree to make wills on agreed terms and not amend them without each other’s consent.

Question 19

What is a mutual will?

Answer 19

A mutual will is an agreement between two testators to each make a will on terms agreed between them, with the understanding that neither will amend their will without the other’s consent.

Question 20

What happens if a testator attempts to revoke a mutual will?

Answer 20

Equity may impose a constructive trust over the testator’s property on the terms previously agreed, limiting the effect of any new will.

Question 21

What are mirror wills?

Answer 21

Mirror wills are the wills of a couple that reflect each other, where each leaves their estate to the survivor, and if both do not survive, to their children.

Question 22

Do mirror wills imply an agreement not to revoke?

Answer 22

No, executing a mirror will does not imply that there is an agreement not to revoke the will later.

Question 23

What revokes a will or codicil?

Answer 23

A will or codicil may be revoked by destruction, an express revocation clause in a later will, express wording in a codicil, or if a later will or codicil is inconsistent with the earlier will.

Question 24

What is the effect of marriage on a will?

Answer 24

Under s 18 Wills Act 1837, marriage automatically revokes any will made prior to the marriage, regardless of the testator’s intention.

Question 25

What is the effect of divorce on a will?

Answer 25

Divorce operates as a partial revocation of a will, treating the former spouse as having died, which affects any appointments and gifts made to them.

Question 26

What must a will in contemplation of marriage include?

Answer 26

It must name the future spouse, identify the intended ceremony, and state whether the will is intended to be revoked upon marriage.

Question 27

What happens if a testator makes a will after divorce?

Answer 27

Any will made after divorce is unaffected by the previous marriage, and the testator can make whatever provisions they wish for their former spouse.

Question 28

What is the significance of s 18A and s 18C WA 1837?

Answer 28

These sections treat a former spouse or civil partner as having died before the testator, affecting all references to them in the will.