Chapter 3- Revocation, Additions and Alterations Flashcards
What is revocation?
The formal act of cancelling or withdrawing of a will.
The effect of revocation is to nullify the will, either as a whole or in part.
A fundamental feature of a will is that they are revocable.
In what three ways can a will be revoked?
By later will or codicil
By destruction
By marriage/ forming a civil partnership
What does s20 Wills Act say?
A will may be revoked by codicil or by a later will.
No formal wording is needed.
Dating a will is not a formal requirement but advised to determine which will is newer.
The court may construe a testator’s intentions to revoke an earlier will by an express revocation clause as being conditional upon a particular event
What is deemed to ‘destruct’ a will?
By ‘burning. tearing or otherwise destroying the same by the testator or by someone in his presence and by his direction with the intention of revoking the same’
Physical destruction is required.
Symbolic destruction is not enough.
The act of destruction must be carried out with the intention to revoke. A will destroyed by accident is not revoked.
The contents of a will may be saved by a copy or draft if the revocation by destruction was conditional upon a future event that didn’t happen.
What is the exception to marriage rendering a will invalid?
Where it appears from the will that the testator makes the will prior to and in expectation of a forthcoming marriage or civil partnership with a particular person and that the testator did not intend to revoke.
Two elements must therefore be satisfied:
- the expectation must be of a forthcoming marriage to a particular person
- the testator must intend that the will is not to be revoked by marriage.
Both elements must be evidenced in the will.
What is a mutual will?
Mutual wills arise where two people;le make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.
What is a codicil?
When the testator may wish to make additions or amendments to the will.
It is a document executed in the same way as will, which supplements an existing will.
The will and codicil must be read together to ascertain the testator’s wishes.
A properly executed codicil has the effect of republishing the existing will.
The testator must have intended to republish the will.
What is an alteration?
Sometimes, to make changes to a will, the testator may make changes on the actual face of the will.
The key issue here is to determine when the alterations were made.
If before the will was executed, they are valid provided that the testator intended the alterations to form part of the will.
Any alterations after execution may need extrinsic evidence. BUT they will be valid if they ere executed like a will. The testators initials and the witnesses in the margin will suffice.
What happens if an alteration is invalid?
The original wording of the will will count.
The requirement is that the original wording must be ‘apparent’.
