Revocation. Additions and Alterations Flashcards
• The validity of a will and interpretation of the contents of a will. The distubrution of testate, intestate and partially intestate estates • the planning, management and progression of the admisntration of an estate. • alterations and amendments to wills • Methods of revocation • Effect of marriage and divorces of a testator • Use of codicils Effect of alterations made to wills both before and after execution.
What is revocation?
It is the formal act of cancelling or withdrawing a will. The effect of revocation is to nullify the will, either as a whole or in part.
The rule is that testator is free to revoke their will at any time provided that they have capacity to do so. This is the same capacity required to make a will.
In what situations can a will be revoked?
- By a later will or codicil
- By Destruction
- BY marriage/forming a civil partnership.
Explain how a will can be revoked by way of a later will or codicil?
Per s20 Wills act, a will may be revoked in whole or in part by a declaration to that effect in a later will or codicil. or in a written declaration executed in the same manner as a will.
no particular wording is required, but a statement expressing revocation of former wills is sufficient.
( revocation clause)
if a will does not contain an express revocation clause, it operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent.
this could result in complete revocation of the earlier will if the two are totally inconsistent or there could be just a partial revocation in which case the two wills will need to be read together in order to piece together the testators intentions.
Should a will or codicil be dated for the purposes of revocation
Although it is not a requirement in s9 of wills act, it is advisable to date a will so that the chronology can be established for the purposes of revocation.
What is the doctrine of ‘conditional revocation’
Where an express revocation clause is conditional upon a particular event. If that condition is not satisfied, the revocation may be held to be invalid so that the earlier will remains effective
Explain how a will can be revoked by way of destruction?
Physical destruction is required, symbolic destruction such as crossing out wording or writing ‘revoked’ across the will is not sufficient, although if a vital part is destroyed such as the signature this may revoke the entire will.
- destruction must be carried out by the testator themselves or by someone else in the testator’s presence and by their direction. If the destruction is carried out by someone else in the testators absence it will be ineffective to revoke the will.
- The act of destruction must be carried out with the intention to revoke.
If part of the will that is destroyed is less substantial or important, then the partial destruction may revoke only that part which was actually destoryed.
The test is whether the remainder of the will is intelligible and can still operate in the absence of the destroyed part.
What is the doctrine of dependent relative revocation?
This is something the Courts may apply to save a will, on the basis that the testator intention to revoke their will by destruction was conditional upon some further event such an execution of a new will.
if that event did not take place the original will may be valid even though it was destroyed.
Explain how a will can be revoked by way of a marriage or formation of a civil partnership.
If the testator marries or forms a civil partnership after executing a will, the will is revoked. revocation is automatic.
is a will being revoked by way of marriage or formation of a civil partnership and absolute rule?
no, the rule does not apply 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 the testator did not intend the will to be revoked.
Two elements need to be satisfied:
- The expectation must be of a forthcoming marriage to a particular person. So a will made in a general expectation of marriage is not sufficient.
- The testator must intend that the will is not to be revoked by the marriage.
Essentially this requires the will to recite the fact the expected marriage with the particular person and a wish that the will is not be revoked. Important to note a marriage with anyone other than the particular person anticipated revokes the will.
Is a will revoked where a civil partnership is converted to a marriage?
The conversion will not revoke an existing will of either party nor affect any dispositions in the wills.
What are mutual wills?
Mutual wills arise where two people make wills on similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.
The wills must have been made as a result of a clear agreement between the testators as to the disposal of their estates and part of that agreement is that the surveyor will not revoke their will or that they will leave their estate in a particular way.
The agreement amounts to a contract, and if this is breached it may give rise to a contractual remedy i.e damages to a disappointed beneficiary.
if a party deicides to revoke the will in spite of the other party fulfilling their side of the bargain. Equity will step in the form of the doctrine of mutual wills.
This has the effect of imposing a constructive trust over the estate left in the will in favour of the identified beneficiary. the constructive trust arises when the first testator dies without having revoked their will. At that point the first testator has carried out their side of the bargain, so it would be wrong to allow the survivor to renege their side.
Do mutual wills guarantee that the ultimate beneficiary will actually received their intended benefit.
No, the survivor is the absolute owner and is free to used their money and property in whatever way they choose. However, the survivor is not permitted to make dispositions during their lifetime with the intention of defeating the agreement in the mutual wills.
Is it possible for both testaors to revoke their mutual wills?
yes as a joint decision only.
What is a codicil?
A document that is executed, in the same way as a will, which supplements an existing will. A codicil can be used to amend, add to revoke in part, an existing will.
A properly executed codicil has the effect of republishing the existing will.
A republished will is deemed to have been made at the time of republication. Therefore, any description of people in a will is taken to refer to those who satisfy the description at the time of republication.
If a gift is invalid because the beneficiary has acted as a witness will it be saved if the will is republished by a codicil which is not witnessed by the beneficiary?
Yes
