Revocation Flashcards
What is required for revocation by destruction?
Same testamentary capacity required
Complete destruction of the original by a testator who lacks capacity is not valid.
How can a will be revoked by destruction?
By burning, tearing or destroying a will with intention to revoke
Who must be present when a will is destroyed?
The testator must be present.
What are the types of intention regarding revocation?
- Absolute
- Conditional (e.g., on getting divorced)
How can intention to revoke be presumed?
If the will was in the testator’s possession before death and found in a mutilated condition.
What happens if a will is amended by hand?
Intention to revoke original will is valid only if the new/amended version is valid.
What must be destroyed to revoke a will?
The original will must be destroyed rather than a copy.
What happens if not all parts of the will are destroyed?
The will can operate with sections that remain if attestation pages are still there. Must look and see if the provisions of the will that remain make sense.
What happens if essential parts of the will are destroyed?
The whole of the will is revoked.
What are considered ‘essential’ parts of a will?
E.g., the signatures.
What is presumed if a will is missing?
Testator is presumed to have destroyed will with an intention to destroy it.
What is presumed if a will is damaged?
Testator is presumed to have intended to revoke unless evidence shows otherwise.
Who has the burden to rebut the presumption of revocation for missing or damaged wills?
Administrators.
What must administrators show to rebut presumption of revocation?
- Valid will existed when deceased died but was lost/damaged
- Deceased did not intend to revoke their will
- Deceased did not instruct destruction
What is included in every will as standard?
Clause ensuring previous wills are revoked (revocation clause)
When is it appropriate for a testator to have more than one valid will?
If they own assets abroad - make sure you do not attempt to distribute the same assets
What is implied revocation by will?
Any new will automatically revokes older ones to the extent that they are inconsistent. But always best to include a revocation clause.
Can there be two valid wills?
Yes, where they overlap or are inconsistent, the later impliedly revokes the earlier.
What is required for revocation by writing?
Letter or memorandum must be executed in the same manner as a will.
What is revocation by codicil?
Codicil may revoke a will or clauses within it.
Does a codicil usually revoke the entire will?
Usually only part of a will.
What happens if express words of revocation are missing in a codicil?
Only revokes to the extent it is inconsistent.
Does revocation of a will by destruction revoke codicils?
Revocation of a will by destruction will not necessarily revoke any codicils to it.
What are mutual wills?
Where one testator agrees with another to make a will on agreed terms and agree neither will amend without consent of another.
What happens if a testator tries to revoke their will contrary to a mutual will arrangement?
Equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.
What are mirror wills?
Wills of a couple which mirror each other.
Do mirror wills imply an agreement to not revoke prior to death?
Does not imply that there is an agreement to not revoke at any time prior to the death of either of them.
