Revocation, Additions and Alterations Flashcards
A testator with testamentary capacity can revoke their will at any time. What are the three ways in which this can be done?
By a later will or codicil
By destruction
By marriage/formation of a civil partnership.
What is a codicil?
A codicil is a document, executed in the same way as a will, which supplements an existing will
- Used to amend, add to, revoke in part
Wills and codicils are read together to ascertain the testator’s wishes
Codicils republish the existing will, so the will takes effect as if it was made at the same time as the codicil, but with the codicil’s changes incorporated
- Testator must have intended to republish their will
- This can affect the beneficiaries, as the will ‘speaks from the date of execution,’ which would be when the codicil was executed
Codicil can revive a revoked will if the codicil evidences this intention, either through express statement or a disposition which means the testator could have had no other intention but to revive the will
- Mere reference to the will is insufficient
Where changes are substantial, a new will is better than a codicil
Explain revocation by will or codicil
- Will might have an express revocation clause - ‘I hereby revoke all former wills previously made by me’
- Inconsistency between an old and new will can act to revoke a particular part – all my estate to X, then my house to Y – read together at death, everything to X except the house to Y on death
Explain revocation by destruction
Physical destruction required (burning, tearing)
Crossing out words insufficient unless it’s a vital part (signature); writing revoked is also insufficient
- If there’s partial destruction of an insubstantial part, only that bit might be revoked, if the rest can operate intelligibly without it
Destruction must be accompanied with an intention to revoke - must be done by testator or in their presence
- No witnesses needed!
What is the doctrine of conditional revocation?
Doctrine of conditional or dependent relative revocation may apply where the testator’s intention to revoke their will by destruction was conditional on some future event (upon later execution of a new will). If this event didn’t happen, the original will may be valid, even if destroyed (copy or draft used to reconstruct)
If X has a will leaving estate to Y, but then destroys it intending to make a new will for the estate to go to Z, but dies before execution, the court may say revocation was conditional on valid execution of will to Z, so Y gets the estate as per original
Explain revocation by marriage or formation of civil partnership
Automatic revocation if the testator marries/forms a civil partnership after executing a will
Exception to this where a will is made in anticipation of marriage if the following two elements are evident from the will:
- 1) 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.
- 2) The testator must intend that the will is not to be revoked by the marriage
If the two above elements are satisfied, but the marriage doesn’t happen, the will is effective anyway, so estate would go to proposed future spouse
What is the doctrine of mutual wills?
1) Where there are mutual wills (husband and wife agree that whichever survives will irrevocably leave their estate to wife’s daughter from another relationship), if the survivor revokes the mutual will after the other dies, equity will step in, in the form of the doctrine of mutual wills
2) The effect of the doctrine is to impose a constructive trust over the husband’s estate in favour of the wife’s daughter as the beneficiary under the original mutual will.
- This won’t invalidate the new will, but would frustrate a change in the survivor’s intentions
3) Doctrine doesn’t apply just because there are very similar or identical terms in two wills; there must have been a clear agreement between the testators as to the disposal of their estates, a part of which was that the survivor won’t revoke their will
- Constructive trust arises when the first testator dies without having revoked their will, because they carried out ‘their side of the bargain.’
4) If one revokes during the lifetime of both, the other could seek damages for breach of contract
- Both could revoke permissibly as a joint decision
How are alterations to a will before execution treated?
Alterations made before the will was executed are valid, provided the testator intended them to be part of the will
Presumption is that alterations are made after execution, unless contrary can be proven
How are alterations to a will after execution treated?
Alterations made after execution are valid if the alterations are executed like a will
Initials of testator and witnesses in margin next to amendment is sufficient
What happens if an alteration is not valid?
If an alteration is invalid, original wording stands if it is ‘apparent’
- This means the wording must be capable of being read on the face of the will by ordinary means (holding it to the light/magnifying glass)
- Extrinsic evidence not permitted to decipher the original wording
What is the position where words are ‘obliterated’ (removed so they cannot be read at all)?
This amounts to a revocation of the original wording by destruction, provided it is accompanied by an intention to revoke - client must obliterate themselves
Will remains valid, without the obliterated words taking effect
The conditional revocation rule may apply where the obliterated words are replaced with substitute wording
If the substitute words are unexecuted and invalid, the original words haven’t been revoked, and the court will look at any evidence to reconstruct them
Give examples of different alterations and their effects
1) Drawing a thin line through words, where the words are still legible underneath is an invalid alteration, if unexecuted
2) Drawing a thin line, adding substitute wording and getting two people to witness a signature and sign, allows the alteration to become executed and valid
3) Drawing a thin line, adding unexecuted substitute wording, will mean the original wording will stand, if ‘apparent’
4) Drawing a thick line, which makes the words unreadable, obliterates them and alters it successfully
5) Drawing a thick line, which makes the words unreadable, but adding substitute words that aren’t witnessed, means the revocation was conditional on the change taking effect, which it can’t do, due to invalid execution – original gift takes effect (if they can decipher underneath the line)
