Revocation (& Mutual / Mirror Wills)

Question 1

What is the GENERAL rule about when a T can REVOKE a will?

Answer 1

Anytime PRIOR to death as long as have CAPACITY

Question 2

What are the 3 key ways a Will can be revoked?

Answer 2

(1) Later Will / Codicil
(2) Destruction
(3) Marriage

Question 3

A Will can be Revoked by a LATER Will.

What is the first question to ask about the LATER Will to determine to extend it is revoked?

Answer 3

Does the LATER will contain an ‘EXPRESS REVOCATION CLAUSE’

Question 4

A LATER Will can fully revoke an earlier will if it contains an ‘Express Revocation Clause’.

What must the ‘‘Express Revocation Clause’ contain to be valid?

Answer 4

The word ‘REVOKE’
(e.g. “I hereby revoke all former wills”)

Question 5

If a LATER Will does NOT contain an ‘Express Revocation Clause’. To what extent Will will the Former Wills be revoked?

Answer 5

Revoked to extent later Wills INCONSISTENT with former Wills

(i.e. anything in former will that does NOT contradict the new will remains valid)

Question 6

What is a ‘Codicil’? 2 Components

Answer 6

(1) Document EXECUTED in same way as a Will
(2) SUPPLEMENTS an existing Will (e.g. amends, revokes, revives)

Question 7

(1) What is the effect of ‘Codicil’ on the Original Will?
(2) How will a ‘Codicil’ change the date of EXECUTION of Will?

Answer 7

(1) REPUBLISHES it
(2) Date of execution = Date CODICIL EXECUTED

Question 8

If a GIFT in an original vill FAILS as the Beneficiary acted as witness, can it be ‘saved’ if they DO NOT act as a witness for the Codicil?

Answer 8

Yes

Question 9

Can a ‘Codicil’ be used to REVIVE an PREVIOUS Will?

Answer 9

YES Unless Will Destroyed

Question 10

A will can be revoked by DESTRUCTION.

What are the 2 conditions for this?

Answer 10

(1) Physical act AND
(2) Intention to revoke

Question 11

A will can be revoked by DESTRUCTION. One component of this is a “physical act” takes place. Which of the following counts as a ‘physical act’ and which do not?
(1) Tearing
(2) Burning
(3) Writing revoke on the will
(4) Burning a copy

Answer 11

(1) Tearing
(2) Burning

Question 12

A will can be revoked by DESTRUCTION. One component of this there is “intention” to revoke.

What are 3 examples of when intention is unlikely to be found?

Answer 12

(1) Accident
(2) Uncontrolled fit of anger
(3) Drunk / incapacitated

Question 13

A will can be revoked by DESTRUCTION.

This can be done by (1) Testator or (2) Another person. If this is done by ANOTHER PERSON, what 2 conditions must be met for this?

Answer 13

(1) Directed (by T)
(2) In Presence of T (i.e. in room)

Question 14

If a Will is PARTIALLY DESTROYED , what test will the court use to determine if the will is (a) Partially revoked or (b) Fully revoked?

Answer 14

Can the will OPERATE EFFECTIVELY without the missing part(s)?

YES - Partially revoked (of part destroyed)
NO - Fully revoked

Question 15

If a will was KNOWN to be kept in the possession of the T but is now lost, will it be treated as REVOKED?

Answer 15

PRESUMPTION revoked

Question 16

(1) What is the effect of MARRIAGE on a Will?
(2) What is the exception to this?

Answer 16

(1) AUTOMATICALLY revokes a Will
(2) ‘Contemplation of Marriage’ Clause

Question 17

A Will will be AUTOMATICALLY REVOKED on Marriage unless there is a ‘Contemplation of Marriage’ clause.

What 2 conditions make a ‘Contemplation of Marriage’ Clause Valid?

Answer 17

(1) Name a SPECIFC SPOUSE (e.g. Saskia)
(2) EXPRESS WORDING (i.e NOT revoke)

Question 18

What is the effect of ‘Divorce on a Will?

Answer 18

PARTIALLY Revokes (will)

Question 19

If a T gets ‘Divorced’:
(1) Does the Will remain VALID?
(2) How will the former spouse be treated in the will?
(3) What are the 2 key consequences from (2)?

Answer 19

(1) Will remains VALID
(2) PREDECEASED T (i.e. dead)
(3)
(a) CANNOT act as TRUSTEE / EXECUTOR
(b) Gift ‘LAPSES’ (i.e. fails)

Question 20

If T ‘Divorces’ the Will remains VALID but the former spouse will be treated as if they PREDECEASED the T (i.e. dead).

What are the 2 key consequences of this for the Former Spouse?

Answer 20

(a) CANNOT act as TRUSTEE / EXECUTOR
(b) Gift ‘LAPSES’ (i.e. fails)

Question 21

When 2 people make a Will with IDENTICAL TERMS, what type of Will is this?

Answer 21

Mirror Will

Question 22

Can Mirror Wills be revoked?

Answer 22

Yes

Question 23

What is a ‘MUTUAL’ Will

Answer 23

2 or more people (e.g. spouses) agree to dispose of their property in a specific manner

Question 24

What TYPE of Will is the following:

‘A husband and wife make wills leaving their estates to each other with the provision that whichever of them survive leave their estate to their daughter’

Answer 24

Mutual Will

Question 25

(1) Can MUTUAL Wills be revoked?
(2) What will happen if one Party attempts to revoke a ‘Mutual Will’ (e.g. by creating a new Will)

Answer 25

(1) NO

(2) CONSTRUCTIVE Trust imposed over Estate of the first party to die