Conditional Revocation

Question 1

Conditional Revocation

Answer 1

Testator would not be revoking their will except for a certain condition. Look at intention, would they have intended it absolutely or conditionally?

Question 2

Simple example

Answer 2

Revocation conditional if clear on evidence that testator revoked because they believed it was void

Question 3

Giles v Warren

Answer 3

Facts: testator destroyed by tearing up when friend told him it was not valid

Ratio: probated because his intention to revoke was contingent on his understanding it was not valid

Question 4

Mistake of fact or law

Answer 4

If T destroys a valid will b/c he believes it is not a valid will, but does so under mistaken belief as to the facts or the law, the will is revoked.

Question 5

Re Sutherland

Answer 5

Facts: codicil based on thinking people were dead, alive

Ratio: found not to revoke because she would not revoke if they were not dead

Question 6

Re Sorenson

Answer 6

Ratio: stated basis for revocation in codicil

Question 7

Dependant Relative Revocation

Answer 7

• Revocation of a will is dependent on its substitution for another will.
• If found by court that the wills specific purpose was to substitute for new will and only that purpose.
• Revoke on condition that new one is valid

Question 8

Re Service

Answer 8

Facts: testator cuts out parts of her will with scissors involving various bequests but died before she could make a new one. Resulted in disinheritance of a bunch of people she had a good relationship with.

Ratio: Only did this because she wanted to make a new will but never got to it. Probated using dependant relative revocation

Question 9

Re Jones

Answer 9

Facts: wanted to change land gift, told bank manager about it, changed it, went to lawyer, died the next day. Found partially mutilated will including parts about land gift and signature cut out (revocation by destruction). Argued she mutilated because she wanted to substitute it.

Ratio: Contemplation of making new will not determinative/conclusive

Question 10

Test for determinative revocation (Re Jones)

Answer 10

Where T mutilates or destroys a will, the questions which arise are as follows:

(1) Did he do so with intention of revoking it?  If no, will not revoked. If yes, go on
(2) If he had an intention to revoke the will, was his intention absolute or qualified, so as to be contingent or conditional? If absolute = end of investigation, as act takes effect as revocation. If not, continue on to (3).
(3) If qualified, what was the nature of the qualification? May be subject to some condition like mistaken belief of revival of old will or subject to a new testamentary disposition.
(4) If subject to some condition/contingency, has that condition or contingency been satisfied or occurred? If the condition/contingency has not been satisfied or occurred, the revocation is ineffective; if it has been satisfied or occurred, the revocation is effective