Chapter 2: Alteration, Amendment, and Revocation of Will

Question 1

When will an alternation to a will be valid?

Answer 1

If it can be proved that it was made before execution.

This can be shown through statements from the witnesses or the initials of the testator and their witnesses adjacent to the alteration, provided that the will reads naturally after the amendment.

Question 2

What happens if you are presented with a will with words crossed out and it can’t be proved the alteration occurred before execution?

Answer 2

The original gift is to apply

Question 3

What is the general presumption re unattested alterations?

Answer 3

Presumed to have been made after execution unless it is filling in a blank space in a will form.

Question 4

What is the solicitor’s starting point if there is an unattested alteration?

Answer 4

Starting point is to try and see the original gift by natural means, e.g., by using a magnifying glass.

If the original words are apparent, then they may be admitted to probate rather than the amendment, but if the original words aren’t apparent, then the court will admit the will with a blank space where the words are obliterated

Question 5

What is needed for any change to the will after it is executed?

Answer 5

Whether by codicil or interlineation on the face of the executed will, it must be executed with the same formalities as a will, including capacity + presence requirements.

Question 6

What is needed for a valid codicil?

Answer 6

1.The codicil must make reference to the will.

2. The requirements for a valid will apply equally for a valid codicil.
3. A clause should be included in the codicil confirming the unamended part of the will, and
4. A codicil may remedy a gift which was void because the beneficiary witnessed the will.

Question 7

What is a codicil?

Answer 7

(Normally) a brief document that adds to, amends, or partially revokes an existing will.

Question 8

In practice, are codicils that common?

Answer 8

With the advent of word processing and will-writing software, it is often simpler to prepare and execute a new will rather than use a codicil to amend an existing will.

Question 9

When may a will be revoked?

Answer 9

At any time by the testator, provided they have retained testamentary capacity.

May occur automatically through the law or by a deliberate act of the testator.

Question 10

When will a will be automatically revoked?

Answer 10

If a testator marries after executing a will, the will is revoked.

Question 11

When will marriage not revoke a will?

Answer 11

If it appears from the will that, when it was made, the testator was expecting to marry a particular person + that they intended that all or part of the will should not be revoked by that marriage.

An express statement to this effect should be included in the will.

If some of the provisions of a will are to be revoked by the marriage, that intention should be apparent from he will.

Question 12

What is the effect of divorce on a will?

Answer 12

A will is partly revoked by the dissolution of a civil partnership or a decree absolute of divorce or nullity.

Former spouse/civil partner is treated as having died on the date of the divorce/dissolution.

Any substitutional provisions in the will which are to take effect if the spouse/civil partner has predeceased the testator will be relevant if the marriage or civil partnership is dissolved/annulled.

Question 13

When will divorce not amend a will?

Answer 13

If a contrary intention is stated

Question 14

What deliberate acts of the testator will revoke a will?

Answer 14

1. Executing a later will or codicil
2. Destruction

Question 15

What is the effect of a later will or codicil?

Answer 15

It impliedly revokes an earlier testamentary disposition only to the extent that it is inconsistent with or merely repeats the terms of the earlier document.

For the avoidance of doubt, it is usual for a will to contain an express revocation clause.

Question 16

How can a person revoke their will by destruction?

Answer 16

By ‘burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same’, per the Wills Act 1837.

Law requires an act of destruction + an intention to revoke

Question 17

What is not meant by ‘act of destruction’?

Answer 17

Writing ‘cancelled’ or ‘revoked’ across the will is not enough.
Nor is putting a line through parts of it.

Question 18

What happens if only part of the will is destroyed?

Answer 18

The destruction may result in the revocation of that part of the will only, or a complete revocation, if a sufficiently substantial or vital part (e.g., the testator’s or witnesses’ signatures) was destroyed.

Question 19

What is needed if the destruction of a will is by someone other than the testator to be effective?

Answer 19

It must be done in the testator’s presence and at the testator’s direction

Question 20

What is the necessary mental capacity needed to be able to revoke the will?

Answer 20

The same as that required for the making of a will

Question 21

What is the presumption if a will is found mutilated at the date of death?

Answer 21

Rebuttably presumed to have been done by the testator with the intention of revoking it.

Question 22

What is the presumption if a will last known to have been in the testator’s possession cannot be found at the date of death?

Answer 22

Rebuttable presumption that the will has been destroyed by the testator with the intention of revoking it.

Question 23

When will the court apply the doctrine of dependant relative revocation?

Answer 23

Could occur when the testator’s intention to revoke their will was conditional upon a future event, such as the later execution of a new will.

If that event didn’t take place, the original will may be valid - even if it was destroyed - if it can be reconstructed from a copy or draft.

Question 24

What are ‘mutual wills’?

Answer 24

These are will made by 2 or more persons, usually with the same clauses and conferring reciprocal benefits, further to an agreement between them to make such will and not to revoke them without the consent of the other.

There is a contract between the parties that the wills are to be irrevocable and will remain unaltered.

Question 25

What does an agreement concerning mutual wills create?

Answer 25

A constructive trust in favour of the beneficiaries

Question 26

What happens if one party to a mutual will changes their will following the death of the other testator?

Answer 26

If one of the 2 testators dies and the other testator then changes their will, a beneficiary harmed by the change may apply to the court for an order to the recipient of the changed gift to transfer it to the person who would have been the beneficiary under the original will.