Revocation (& Mutual / Mirror Wills) Flashcards
What is the GENERAL rule about when a T can REVOKE a will?
Anytime PRIOR to death as long as have CAPACITY
What are the 3 key ways a Will can be revoked?
(1) Later Will / Codicil
(2) Destruction
(3) Marriage
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?
Does the LATER will contain an ‘EXPRESS REVOCATION CLAUSE’
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?
The word ‘REVOKE’
(e.g. “I hereby revoke all former wills”)
If a LATER Will does NOT contain an ‘Express Revocation Clause’. To what extent Will will the Former Wills be revoked?
Revoked to extent later Wills INCONSISTENT with former Wills
(i.e. anything in former will that does NOT contradict the new will remains valid)
What is a ‘Codicil’? 2 Components
(1) Document EXECUTED in same way as a Will
(2) SUPPLEMENTS an existing Will (e.g. amends, revokes, revives)
(1) What is the effect of ‘Codicil’ on the Original Will?
(2) How will a ‘Codicil’ change the date of EXECUTION of Will?
(1) REPUBLISHES it
(2) Date of execution = Date CODICIL EXECUTED
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?
Yes
Can a ‘Codicil’ be used to REVIVE an PREVIOUS Will?
YES Unless Will Destroyed
A will can be revoked by DESTRUCTION.
What are the 2 conditions for this?
(1) Physical act AND
(2) Intention to revoke
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
(1) Tearing
(2) Burning
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?
(1) Accident
(2) Uncontrolled fit of anger
(3) Drunk / incapacitated
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?
(1) Directed (by T)
(2) In Presence of T (i.e. in room)
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?
Can the will OPERATE EFFECTIVELY without the missing part(s)?
YES - Partially revoked (of part destroyed)
NO - Fully revoked
If a will was KNOWN to be kept in the possession of the T but is now lost, will it be treated as REVOKED?
PRESUMPTION revoked
(1) What is the effect of MARRIAGE on a Will?
(2) What is the exception to this?
(1) AUTOMATICALLY revokes a Will
(2) ‘Contemplation of Marriage’ Clause
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?
(1) Name a SPECIFC SPOUSE (e.g. Saskia)
(2) EXPRESS WORDING (i.e NOT revoke)
What is the effect of ‘Divorce on a Will?
PARTIALLY Revokes (will)
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)?
(1) Will remains VALID
(2) PREDECEASED T (i.e. dead)
(3)
(a) CANNOT act as TRUSTEE / EXECUTOR
(b) Gift ‘LAPSES’ (i.e. fails)
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?
(a) CANNOT act as TRUSTEE / EXECUTOR
(b) Gift ‘LAPSES’ (i.e. fails)
When 2 people make a Will with IDENTICAL TERMS, what type of Will is this?
Mirror Will
Can Mirror Wills be revoked?
Yes
What is a ‘MUTUAL’ Will
2 or more people (e.g. spouses) agree to dispose of their property in a specific manner
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’
Mutual Will
(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)
(1) NO
(2) CONSTRUCTIVE Trust imposed over Estate of the first party to die
