Amendments And Revocation Flashcards
What are the options for amending a will?
An entirely new will, a codicil to an existing will, or a manuscript amendment to the will.
What is usually advised for a testator wanting to alter their will?
They should usually be advised to make a new will rather than making a codicil or hand amendments to their existing will.
Who can make manuscript alterations to a will?
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.
What types of amendments can be made to a will?
Obliteration, interlineation, and other alterations.
What is obliteration in the context of a will?
Obliteration is when the text has been crossed out in such a way that the original text is illegible.
What is interlineation in the context of a will?
Interlineation is when writing has been inserted between the existing lines of the document.
What is the general rule regarding amendments made after a will is executed?
Amendments made after execution are invalid and unenforceable.
What presumption exists regarding alterations made after execution?
There is a rebuttable presumption that an alteration was made after execution, rendering it invalid.
How can a testator confirm manuscript amendments?
By re-executing the amended will as a whole or executing a subsequent codicil that affirms the will it amends.
What is a codicil?
A codicil is a formal testamentary document that amends an earlier will, rather than replaces it.
What must a codicil reference?
It must reference the original will it amends.
What can codicils be used to do?
Create new provisions, edit existing provisions, or revoke provisions in a will.
What is the risk of making multiple codicils?
There is a significant risk of error and inconsistency between the documents.
What happens if a beneficiary witnesses a will?
The beneficiary is denied their inheritance unless the codicil is witnessed by different people.
What is required for revocation by destruction?
The testator must physically destroy the will with the intention to revoke it.
What happens if a will is missing after the testator’s death?
The testator is presumed to have destroyed their will with the intention to revoke it.
What is an express revocation clause?
It ensures that all previous wills are revoked and there is only one valid will at any one time.
What is mutual wills?
Mutual wills are where two testators agree to make wills on agreed terms and not amend them without each other’s consent.
What is a mutual will?
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.
What happens if a testator attempts to revoke a mutual will?
Equity may impose a constructive trust over the testator’s property on the terms previously agreed, limiting the effect of any new will.
What are mirror wills?
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.
Do mirror wills imply an agreement not to revoke?
No, executing a mirror will does not imply that there is an agreement not to revoke the will later.
What revokes a will or codicil?
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.
What is the effect of marriage on a will?
Under s 18 Wills Act 1837, marriage automatically revokes any will made prior to the marriage, regardless of the testator’s intention.
