Chapter 9: Workshop 9: Alterations, amendments and revocation of wills

Question 1

Incorporation of documents into wills

Answer 1

This element explores:

· Criteria for successfully incorporating unexecuted documents into a will

· Incorporating STEP provisions

· Letters of wishes

An unexecuted document may be incorporated into a will by referring to it in the will.

Question 2

Successful incorporation

Answer 2

To successfully incorporate an unexecuted document into a will, each of the following criteria must be satisfied:

a) The document must exist when the will is executed (or at the time a later codicil is made – because the codicil re-publishes the original will)

b) The will must refer to the document as being in existence at the time of execution

c) The document must be clearly identified in the will

Question 3

“I leave my collection of antique dolls to each of the people named in the list now to be found in my safe”

Answer 3

This clause would satisfy the criteria and, assuming it can be shown the listed existed at execution, the list would be successfully incorporated, and its terms would be given effect.

Question 4

“I leave my collection of antique dolls to each of the people to be named in a list which I will write before my death”

Answer 4

This clause would not satisfy the criteria. Although the list is referred to in the will, it does not exist at the time of execution / has not been referred to as existing at that time. The list will not be incorporated.

If a document is validly incorporated into a will, it becomes part of the will even though the document itself does not comply with s.9 Wills Act 1837.

The document will be made public along with the will once it is admitted to probate following the testator’s death. A client who believes it will be kept private is mistaken.

Question 5

“I leave my collection of antique dolls to each of the people to be named in a list which I will write before my death”

Answer 5

The incorporation of an unexecuted document may seem appealing to a client who wants to create a detailed schedule of personal possessions, perhaps with photographs, without this needing to form part of the will itself. However, this should be avoided wherever possible because of the danger of failing to satisfy the conditions, or loss of the document to be incorporated before death.

If an inventory or detailed list of goods is to be part of the provisions of the will it would be safer to include such a list in the will itself as a schedule.

Question 6

Incorporating STEP Provisions

Answer 6

STEP (Society of Trust & Estate Practitioners) is a professional association which promotes best practice on matters such as will drafting and estate administration. STEP have produced a set of nationally recognised administrative powers for personal representatives and trustees.

These are commonly incorporated into a will or trust deed as an alternative to drafting lengthy and technical administrative clauses in the body of the document itself. The STEP provisions (an unexecuted document) can be incorporated into a will or trust deed by reference i.e. each provision does not need to be copied out in full in the will

Question 7

Letters of wishes

Answer 7

Where a trust is created under a will you may find an expression of wishes / letter of wishes has been drafted by the testator and stored with the will.

These ‘letters’ are common in practice and are drafted by the testator. They set out how the testator would like the trustees of the estate to manage their discretionary powers.

The letters are not legally binding and merely serve as guidance.

These letters do not form part of the will (or trust created under it) and there is no intention for these documents to be incorporated into the will.

Question 8

Summary

Answer 8

· It is possible for unexecuted documents to be incorporated into a will by reference.

· The document must be clearly identified in the will, in existence when the will is executed and the will must refer to the document as being in existence at execution.

· Any document successfully incorporated into a will is admitted to probate along with the original will.

· Clients should be advised against incorporating additional documents into their will because of the practical issues that may arise if the conditions for incorporation are not satisfied or the document cannot be located following death.

Question 9

Alterations (before and after execution)

Answer 9

A testator may wish to amend their will if its current form does not reflect their wishes.

A number of options are available for such a testator. They may choose to make:

• an entirely new will
• a codicil to an existing will (a formal testamentary document amending a will)
• make manuscript amendments to their original will.

In this element we consider the effect of the testator’s manuscript amendments to their will.

Question 10

Method of amendment

Answer 10

If a testator wants 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.

The cost of making a new will is minimal compared to the costs incurred later if the terms of the will are disputed because of a poorly drafted codicil or because manuscript amendments are unclear or ineffective. The law governing the effect of manuscript amendments is complex and there is a risk that the overall result is not what the testator would have planned.

This element considers manuscript alterations made by the testator personally. Alterations made by another person are invalid (unless intended by the testator and made in their presence and at their direction).

Question 11

Hand Alterations

Answer 11

If a testator does decide to amend their will (or codicil) by hand the effect of any alteration is governed by s 21 Wills Act 1837 (‘WA 1837’):

“No obliteration, interlineation, or other alteration made … after the execution … shall be valid or have any effect… except so far as the words …. before such alteration shall not be apparent, unless the alteration shall be executed in like manner as … required for the execution of a will”

Each aspect of this section will be considered in the context of different examples.

Question 12

Types of Amendment

Answer 12

“No obliteration, interlineation, or other alteration made … ”

In the context of alterations to a will these words refer to the types of amendment you may see:

• Obliteration: where the text has been crossed out in such a way that the original text is illegible
• Interlineation: where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.
• Other alterations: include additions added to the end of the will, a strike through of text which is still legible

Question 13

Post-execution alterations

Answer 13

“ made … after the execution … shall be valid or have any effect”

The general rule is that amendments made after the will is executed are invalid and unenforceable. The alteration has no effect and the original wording is given effect to.

In the example below if the line strikethrough was made after execution it would be an invalid alteration. The alteration is ignored and the will with original wording apparent is submitted to probate. John would receive the original gift of 100 Tesco shares.

Alt text: The example contains the following clause ‘I give to my cousin John Taylor of [address]100 ordinary shares in Tesco plc’. The words ‘100 ordinary shares in Tesco plc’ have been crossed out but remain visible underneath.

Question 14

Presumptions on Timing

Answer 14

It is only alterations made after execution that are invalid. Alterations made prior to execution form part of the will and are enforceable.

However, in many cases it will be difficult to know from the face of the will when the alteration occurred and the personal representatives would encounter difficulties when the will was admitted to probate. Therefore, there is a rebuttable presumption that an alteration was made after execution (which would render the alteration invalid) (Cooper v Bockett).

The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution (confirming when the alteration was made) although this would require the witnesses to accurately recall what the will looked like at execution.

Question 15

Attested Alterations

Answer 15

“unless the alteration shall be executed …as … required for the execution of a will…such alteration shall be deemed duly executed if the signature of the testator and …the witnesses be made in the margin or on some other part of the will opposite or near to such alteration…”

If an alteration is executed like a will (signed by the testator and two witnesses in accordance with s.9 WA) alongside the alteration it is valid. The witnesses do not have to be the same people who witnessed the will.

Question 16

Alternative Text

Answer 16

Alt text: The example contains the following clause ‘I give to my cousin John Taylor of [address]100 ordinary shares in Tesco plc’. The word ‘Tesco’ has been crossed out by hand and replaced with the word ‘Boots’. The initials ‘TR’, ‘AB’ and ‘PF’ have been written underneath the manuscript amendment.

In the example above, John would receive shares in Boots plc. The initials (rather than full signatures) of the testator and two witnesses are sufficient.

Question 17

Execution of Manuscript Amendments

Answer 17

A testator who needs to make manuscript amendments to their will should be instructed to execute the amendments in the same way as a will.

This is the case even if the amendments are made before the will as a whole is executed and would be valid in any event.

Because attested alterations are given effect to ensuring all changes are attested removes the requirement to prove when the alterations were made and can avoid unnecessary dispute.

Question 18

Execution of manuscript amendments

Answer 18

If the manuscript amendment itself is not specifically attested, a testator may instead confirm manuscript amendments by:

• re-executing the amended will as a whole
• executing a subsequent codicil that affirms the will it amends

Note that in both cases, express reference to the manuscript amendments is required to ensure the presumption that the alterations were made after execution is rebutted.

Question 19

Exceptions

Answer 19

There are a couple of exceptions to the general rule that unattested alterations are invalid as they are presumed to have been made after execution.

Where a blank space has been completed there is a presumption that this occurred before execution. In the example below, Kelli would receive £750.

Question 20

Exceptions

Answer 20

Alt Text: The example contains the words ‘I give to my wife Kelli the sum of £ [ ]’. ‘750’ has been added as a manuscript amendment in the blank space between the square brackets.

This presumption on timing can be rebutted by internal evidence from within the will or by external evidence (i.e. affidavit of plight and condition signed by witnesses).

Question 21

Obliteration

Answer 21

“except so far as the words …. before such alteration shall not be apparent…”

If the original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective.

Question 22

Alternative Text

Answer 22

Alt Text: The example contains the words ‘I give to my cousin John Taylor of [address]’. A manuscript amendment has been made, obliterating all the words following ‘address’. It is not possible to read what is underneath.

In the example above, John would receive nothing.

Question 23

Meaning of apparent

Answer 23

“except so far as the words …. before such alteration shall not be apparent…”

In this context ‘apparent’ means the original wording can be deciphered by natural means (reading it or holding it to the light etc. but not e.g. infra-red technology) and without the need for extrinsic evidence (e.g. draft documents).

If the testator did not intend to revoke the gift or a third party made the amendment extrinsic evidence can be used to establish the original gift and infra-red technology would be permitted. If the original gift could be determined the beneficiary would take their entitlement.

Question 24

Conditional Revocation

Answer 24

If the testator made the obliteration with a conditional intent to revoke the gift then extrinsic evidence is permitted to show the original wording. A fresh copy of the will containing the original wording would be admitted to probate.

A conditional intention to revoke is usually found where the testator attempted to substitute another figure (here £100) for the original wording (here unknown) and the attempt at substitution has failed.

Alt Text: The example contains the words ‘I give to my cousin John Taylor of [address]’. A manuscript amendment has been made, obliterating all the words following ‘address’. It is not possible to read what is underneath. The words ‘£100’ have been written in by hand underneath the obliteration.

Question 25

Conditional Revocation

Answer 25

The court can find that the testator only intended to revoke the original gift if the substitution (£100) was successful.

However, if the addition of £100 is not a valid alteration (i.e. it was made after execution or cannot be proved to have been made before) then the substitution is unsuccessful, and if the substitution is not successful there is no valid revocation of the original gift.

The original gift, if it can be ascertained, should be given effect to and extrinsic evidence is permitted to establish the original wording.

Question 26

When are manuscript changes appropriate?

Answer 26

As previously noted, clients should be advised against making any manuscript alteration to their will (or codicil) to avoid any issues or dispute regarding the effect of the changes and the application of s 21 WA.

However, manuscript alterations may sometimes be appropriate where:

• The amendments have no impact on the interpretation or meaning of the will. This could include correction of a typo, change to a beneficiary’s address or correction to the spelling of a name.

Question 27

When are manuscript changes appropriate?

Answer 27

• The changes must be made urgently and a codicil or new will cannot be prepared. This may arise where a testator requires urgent hospital treatment or is due to travel abroad.

If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant. This will avoid the requirement to rebut the presumption on timing.

Question 28

Summary

Answer 28

Alterations given effect to:

· Made before execution of the will/ codicil

· Obliterations with intent to revoke

· Attested alterations

· Completion of a blank space (presumed to have been completed before execution)

· Subsequently confirmed by re-execution or codicil, with reference to the alteration

Alterations not given effect to

· Made after execution of the will/codicil (provided original gift still apparent)

· Obliterations without intent to revoke

· Obliterations by 3rd parties

· Obliterations as conditional revocation

(provided extrinsic evidence of the original gift can be found)

· Unattested alterations (presumed to have been made after execution)

Question 29

Will Amendment: Codicils

Answer 29

A properly drafted will usually replaces any previous wills so the testator has only one valid will at a time. A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together.

The rules relating to the validity of a will also apply to any codicil. To make a valid codicil a testator must have testamentary capacity, knowledge and approval (of the codicil, and the will and any previous codicils referred to) and comply with s.9 Wills Act 1837.

A codicil must be drafted carefully with reference to the original will it amends. Following the testator’s death it is the instructions in the original will, as amended by any codicils, which are given effect to.

Question 30

When are Codicils appropriate?

Answer 30

Codicils may be used to:

• create new provisions in a will e.g. add a legacy for a new beneficiary
• edit existing provisions in a will e.g. change the value of a pecuniary legacy
• revoke provisions in a will e.g. remove a particular beneficiary’s entitlement

Question 31

When are codicils appropriate?

Answer 31

If the testator wants to make significant or multiple changes it is usually advisable to execute a new will rather than make a codicil to remove the risk of inconsistency between the documents.

There is no legal maximum number of codicils a person can make but given the potential for confusion it is usually advisable to limit the number of codicils made to an original will. Historically, making a codicil was easier and cheaper than making a new will but advances in technology mean this is no longer necessarily the case.

Question 32

Drafting Pitfalls

Answer 32

There is a significant risk of error when drafting codicils. The following are some of the issues which can occur:

• Not expressly noting a change to the testator’s name or address
• Not affirming the parts of the original will which remain unchanged
• Missing or incorrect cross reference to the date of the original will or earlier codicil
• New codicil that refers only to the original will and not the previous codicil(s)
• The effect of the codicil does not make sense when read in conjunction with the original will and/or fails to take into account changes made by a previous codicil
• Incorrect references to clause numbering (this is more likely when freestanding clauses are added rather than changes made to existing clauses)

Question 33

Properly Drafted Codicils

Answer 33

A properly drafted codicil should not give rise to any inconsistency or ambiguity when read together with the will.

For the avoidance of doubt the codicil should expressly state the extent to which the testator confirms or revokes their earlier will (and any previous codicils).

If there are no express words of revocation there is a presumption (which can be rebutted) that the terms of the original will remain where possible. The codicil will only revoke an earlier will to the extent there is inconsistency between them (Lemage v Goodban).

Where inconsistencies arise with regards references to the date of the will (or earlier codicil), or the number of codicils that exist, affidavit evidence can be provided to explain the discrepancy.

Question 34

Republishing a will

Answer 34

When a testator executes their codicil this acts to ‘republish’ the will (and any codicils) to which it expressly refers. The will is given effect to as if it had been executed on the date on which the codicil was executed.

When applying general rules of construction to clauses in the original will, whether or not they were amended by a later codicil, the date of the codicil would be used.

For example, when considering the clause below, careful thought is needed regarding which picture is given and who is entitled to it.

Question 35

The effect of ‘re-executing’ the original will means if the:

Answer 35

• testator’s brother Alan had two sons at the date of the will but three sons at the date of the codicil, the youngest son at the date of the codicil would benefit.
• testator had an expensive painting in the hallway of his house when the will was executed but had replaced this with a cheap print by the time the codicil was executed, the beneficiary would inherit the print.

It is essential that the effect of the will being republished is considered when drafting a codicil to ensure the overall effect meets the testator’s intention.

Question 36

Correcting Problems by Codicil

Answer 36

As the execution of a codicil re-executes the will (or previous codicils it refers to) the codicil can ‘correct’ problems with an earlier testamentary document.

If a beneficiary (or their spouse) witnesses a will, s15 Wills Act 1837 has the effect of denying the beneficiary their inheritance. However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to and the effect of s 15 WA 1837 is avoided.

S15 WA 1837 applies to a codicil in the same way as a will. So a witness to a codicil (or their spouse) must not benefit under either the original will or codicil.

Question 37

Republishing a Will

Answer 37

If the will (or previous codicil) contains unattested manuscript amendments, which would not have effect under the general rule in s 21 Wills Act 1837 because they were made (or deemed to be made) after execution, these can be confirmed by a later codicil.

The amendments must be made before the codicil is executed, and the codicil must expressly refer to the alterations it confirms. Otherwise additional evidence is needed to prove the amendment was made before the codicil was executed.

Question 38

Republishing a Will

Answer 38

If a will (or previous codicil) was not properly executed in accordance with the requirements of s 9 Wills Act 1837 then due execution of the codicil will validate the original will (or previous codicil) to which it refers. Technically this is not a “re” execution as due execution of the original document did not occur.

Question 39

Revocation

Answer 39

A codicil may revoke only part of an earlier will (or codicil), or it may revoke the document in full. If a codicil expressly revokes a previous will (and codicils to it) in full, unless the codicil contains new terms, the testator will effectively be intestate.

Question 40

Revival

Answer 40

A codicil can only re-publish a will that is currently valid and has not previously been revoked. However, a codicil can revive a will that was revoked previously if this is the testator’s intention (s 22 Wills Act 1837).

It is usually preferable to make a new will rather than revive a will that has been revoked as there may be confusion regarding testamentary documents made in the interim, and if the original was destroyed it cannot be revived.

If a codicil revokes all/part of a will, and the codicil itself is then subsequently revoked, this would not automatically re-instate the terms of the will that had been revoked by the codicil.

Question 41

Summary

Answer 41

• A codicil is a testamentary document – to be valid it must satisfy the same legal requirements as a will
• A codicil amends rather than replaces an original will
• Executing a codicil re-publishes the will it refers to; this can have unintended consequences re the interpretation of the original will but potentiality correct historic issues
• A codicil may revoke a will in whole or in part
• A codicil may revive a will that was previously revoked (unless it was revoked by way of destruction)
• It is often preferable for a testator to make a new will rather than a codicil due to the risks of inadvertent errors when drafting

Question 42

Revocation of a Will

Answer 42

Having made a valid will a testator may decide they want to revoke (cancel) it.

A will (or clauses within it) may be revoked by:

• Destruction

*Revocation by a later will

*Revocation by later codicil

*Testator’s subsequent marriage

*Testator’s divorce

*An effective alteration

This element considers destruction and revocation.

Question 43

Revocation by destruction

Answer 43

By s 20 Wills Act 1837 a will may be revoked by the testator:

‘burning, tearing or otherwise destroying’ it

provided there is also an intention to revoke the will.

One without the other is ineffective.

The testator requires the same testamentary capacity to revoke a will as to make a valid will.

A physical act of destruction is needed; writing ‘revoked’ on the will would not be effective.

Complete destruction of the original will by a testator who lacks capacity or intention is not effective and the will remains valid. Affidavit evidence would be required for a copy of the will to be admitted to probate.

Question 44

The intention to revoke may be:

Answer 44

absolute (in which case the revocation is effective immediately)

or

conditional (for example on getting divorced) in which case the revocation will not be effective until the condition is satisfied.

If a testator amends their will by hand to substitute a new legacy/gift for an existing beneficiary, they may intend to revoke the original gift but only if the new/amended version is valid (referred to as dependent relative revocation).

If the amendment is not valid (for reasons considered in another element) the original gift has not been revoked. Therefore, evidence of the original gift may be submitted to the probate

Question 45

Original Will

Answer 45

The original will must be destroyed rather than a copy.

If another person destroys the will this will not be effective unless it is at the direction of the testator and in his presence.

If a testator does not destroy all parts of the will the effect depends on the parts that remain. The destruction is partial if the will can operate effectively with the sections that remain. If not, the whole of the will is effectively revoked. For example, if the attestation pages are destroyed including the testator’s signature.

Question 46

Missing or damaged wills

Answer 46

There are presumptions as to revocation that arise where a will is missing or damaged.

If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is:

Missing - the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise (Patten v Poulton)

Damaged - the testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise

Question 47

Missing or Damaged Wills

Answer 47

Those administering the estate of the deceased will have the burden of rebutting a presumption of revocation by showing:

-a valid will existed when the deceased died but was lost/damaged after death

-the deceased did not intend to revoke their will​

-the deceased did not carry out or give instruction for the act of destruction​.

If sufficient evidence can be provided to rebut the presumption, a copy of the will may be admitted to probate (NCPR 54).

Question 48

Express Revocation Clauses

Answer 48

An express revocation clause is usually included in every will as standard (even where a testator tells their solicitor they have not made a will before). This ensures that all previous wills are revoked and there is only one valid will at any one time. To be effective express words of revocation are required.

“I hereby declare this to be my last will”: Does not revoke previous wills or codicils.

“I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”: Effective to revoke previous wills and codicils.

Question 49

Express Revocation by Will

Answer 49

NB: It may be appropriate for a testator to have more than one valid will if they own assets abroad. It is common for a testator to make a will in relation to their UK assets and another will in the jurisdiction where their foreign assets are located. If this applies the wills should not attempt to distribute the same assets and neither should revoke the other.

Question 50

Implied Revocation by Will

Answer 50

A will is valid without a revocation clause but one should be included as a matter of good drafting. If a later will does not contain an express revocation clause the testator will have more than one valid will. In this situation the combined effect is followed but, to the extent they are inconsistent, the later will impliedly revokes the earlier, so the later will is given priority.

Question 51

Example

Answer 51

• Will dated 18 months ago includes: I GIVE my book collection to Mary
• Will dated 6 months ago includes: I GIVE my book collection to Jessica

The later will revokes this clause in the earlier one and the book collection will go to Jessica.

In practice this makes construction of the documents complex and can result in an unintended distribution. Solicitors can avoid the issue by always including an express revocation clause when drafting a will for their clients.

Question 52

Revocation by Codicils

Answer 52

A codicil (a testamentary document that amends rather than replaces a will) may revoke a will or clauses within in it.

A codicil will usually only revoke part of a will, and do so by express wording. A codicil should state the extent to which it revokes or confirms the previous Will.

If express words of revocation are missing, the codicil only revokes the will to the extent it is inconsistent with the will.

Revocation of a will by destruction will not necessarily revoke any codicils to it.

Question 53

Example

Answer 53

I, [Testator] of [ ] hereby declare this to be the First Codicil to my last Will dated [ ].

By this codicil I revoke clause 3 of my Will and replace it with the following:

“I give £300 to my mother”

In all other respects I confirm my will.

Question 54

Mutual Wills

Answer 54

After making a will a testator is free to change it and a will cannot be made ‘irrevocable’.​

However, it is possible to make a mutual will: where one testator agrees with another testator to each make a will on terms agreed between them. Both testators also agree that neither of them will amend their will without the consent of the other. If a testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.​

Question 55

Mutual Wills

Answer 55

For example: a married couple make wills on terms where the survivor of them inherits the estate of the first to die, and on the 2nd death everything passes to their children. If both parties intended the survivor to be bound by the agreement, and it would be unconscionable for the survivor to change the terms of their will after the death of their spouse, equity can impose a constructive trust.​

Mutual wills are not common and should be approached with care.

Question 56

Mirror Wills

Answer 56

Do not confuse mutual wills and mirror wills.

Mirror wills are common and are the wills of a couple which mirror each other.

For example, each couple makes a will that leaves their estate to the survivor of them, but if the other does not survive the assets pass to their children.

Executing a mirror will does not imply that there is an agreement not to revoke the will later and there is no constructive trust imposed. The survivor of the couple is free to revoke their will at any time prior to the death of either of them.

Question 57

Summary

Answer 57

A will may be revoked by:

Destruction by the testator of the original with an intention to revoke

Destruction by a third party if at the testator’s direction and in their presence

An express revocation clause included in a later will

Express wording in a codicil

Implication if a later will or codicil contain no express words of revocation – but the earlier will is only revoked to the extent it is inconsistent with the later will or codicil

Presumption if the original document is missing

If a testator has signed a mutual will their property will be subject to a constructive trust should they attempt to revoke or change that will at a later date. There is no obligation to avoid revocation where a couple make mirror wills.

Question 58

Revocation by Marriage

Answer 58

By s 18 Wills Act 1837 (‘WA 1837’) when a person marries this automatically revokes in full any will (and codicil) made prior to the marriage, even if this is not the testator’s intention. This would be the case whether the testator marries someone of the same or opposite sex.

S 18B WA 1837 has the equivalent effect for a testator who enters into a civil partnership.

Question 59

Revocation by Marriage

Answer 59

The effect of s 18 is significant and many clients will be unaware of its effect.

Therefore, when meeting a client it is important to identify whether or not they plan to get married in the near future. Even if your client does not, you should advise on the effect of s 18 in case their circumstances change.

Question 60

Wills in Contemplation of Marriage

Answer 60

If your client plans to marry/enter a civil partnership after signing their will, and does not wish their will to be revoked as a result, it is possible to avoid the effect of s 18/18B by drafting the will in contemplation of marriage/civil partnership.

The will must name the future spouse/civil partner and identify the intended ceremony. It must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage/civil partnership.

It is not possible to avoid revocation by making a will in contemplation of:

• a hypothetical marriage
• a marriage/civil partnership to one person but then marry/enter a civil partnership with someone else

Question 61

Revocation by Divorce

Answer 61

If a married testator divorces their spouse (or there is a dissolution of their civil partnership) the court order confirming the divorce (final order) or dissolution automatically operates as a limited/partial revocation of their will.

By virtue of s18A WA 1837 (s18C for civil partnerships) the will takes effect as if the former spouse or civil partner had died on the date of the court order unless the will expressly states otherwise. This means:

• an appointment of the former spouse/civil partner as executor or trustee

is not effective; and

• a gift in the will to the former spouse or civil partner will fail.

It is sensible to advise married clients of this effect when taking instructions for their will.

Question 62

Consequential Effect of s 18

Answer 62

The consequential effect of s.18A/C depends upon the wording of the rest of the will. For example, if more than one executor is named in the will the executor who remains can be appointed. However, if the spouse or civil partner was the sole executor, a statutory order is followed and an administrator will be appointed in the absence of any executor who can act.

If a gift to the former spouse/civil partner fails, the items may pass to a named alternative beneficiary, and in the absence of this may pass under the general gift of residue. In some scenarios, the failure of the gift to a spouse may result in a full or partial intestacy.

Question 63

Contrary Intention Expressed

Answer 63

The effect of ss 18A and 18C is subject to any contrary intention expressed in the will i.e. the testator could expressly state that he/she wants a spouse or civil partner to inherit, notwithstanding any divorce or dissolution of the civil partnership.

Question 64

Partial revocation of a will

Answer 64

Section 18A/C only affects wills made prior to a divorce or dissolution of a civil partnership. Any will made afterwards is unaffected and the testator can make whatever provision they think fit for their former spouse/civil partner.

Section 18A/C does not affect the right of the former spouse or civil partner to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (although the court order re divorce/ dissolution might).

Question 65

Partial revocation of a will

Answer 65

A testator may be informed about the effect of s.18 A/C by the lawyer advising on their divorce. A client who gets divorced is often better placed to make a new will, rather than relying on implied partial revocation by statute, the consequences of which may not reflect their wishes. It is common for a private client department to receive referrals from the firm’s family lawyers.

Question 66

Summary

Answer 66

· A will (and any codicil to it) is revoked in full by a testator’s subsequent marriage or civil partnership under s 18 and s 18B WA 1837

· It is possible to avoid revocation by making a will in contemplation of a particular marriage/civil partnership

· A testator’s divorce or the dissolution of their civil partnership by virtue of s18A and s 18C WA 1837 has the effect of treating the former spouse/civil partner as having died before the testator - this is a partial revocation of the will

· S.18A/C apply to all references to the former spouse/civil partner in the will and renders their appointment as an executor and/or trustee ineffective, as well as any gift to them void

· S.18A/C only affect wills/codicils made before the divorce/dissolution and do not affect any made subsequently