Study Unit 7: The Revocation of Wills

Question 1

Can a Testator change their mind about the distribution of assets in their will?

Answer 1

Yes, can revoke their will and make new one with different dispositions

Question 2

What are the two requirements for revocation?

Answer 2

1. Needs to be a legally recognised act of revocation

2. Testator must have ‘animus revocandi’ (i.e., intention to revoke)

Question 3

What are the two types of revocation?

Answer 3

Tacit and Express

Question 4

What are the two types of Express Revocation?

Answer 4

1. Execution of a later will/Testamentary document containing an express revocatory clause/statement.
2. Destruction of a will

Question 5

What are the requirements for documents with revocatory clauses in them?

Answer 5

• clauses can be contained in new wills, ante-nuptial contracts, or independent documents
• independent document = revocatory document - must be validly executed re s2(1)(a) of WA
• if testator revokes a will but doesn’t draft another, they die intestate

Question 6

what are the two forms of destruction recognised in the common law?

Answer 6

1. physical destruction - document perishes
2. symbolic destruction - document survives, but is damaged/defaced.

• will is revoked upon destruction
• original will must be destroyed, destruction of a copy is invalid

Question 7

Marais v The Master 1984

Answer 7

Symbolic destruction of a copy of a will is recognised under the common law.
Suffices for purposes of revocation if original will is beyond Testator’s reach (in possession of attorney etc.)

Question 8

What are the presumptions upon the destruction of a will?

Answer 8

• if proven that T destroyed their will, presumed they did so w/ ‘animus revocandi’
• if will was in T’s possession prior to death and can’t be found afterwards/is damaged, presumed they did it w/ necessary animus
• • this presumption doesn’t apply if will was in possession of 3rd party and damaged/destroyed
• *also doesn’t apply if this all happens to a copy of the will
• ** BUT keep in mind Marais v The Master

Question 9

What are the two types of Tacit Revocation?

Answer 9

1. execution of a subsequent conflicting will that doesn’t contain an express revocatory clause
2. ademption (‘ademptio’)

Question 10

what are the requirements when a second conflicting will is executed without a revocatory clause?

Answer 10

wills are read together as much as possible, when conflict, later will is prioritised.
- 2 requirements for revocation met - act performed (second will drafted) and had animus (gave thing to a different person)

Question 11

What is Ademption?

Answer 11

Revocation of a legacy through voluntary alienation during testator’s lifetime of the object of the legacy
e.g., selling a car you said your son would get.
two requirements: revocation = voluntary sale, animus = selling to revoke bequest

Question 12

What happens if Testator revokes a will on the condition that an uncertain event occurs/on the basis of a specific supposition?

Answer 12

Revocation is only effective if condition is fulfilled/supposition is correct

Question 13

What is the Doctrine of Dependent Relative Revocation?

Answer 13

Where the intention to revoke a will depends on a future condition/supposition that proceeds to be incorrect, revocation is ineffective.

Question 14

If a testator revokes a will in order to revive a previously revoked will, will that supposition be correct?

Answer 14

NO, Common Law is clear that revoking a will doesn’t bring into effect a previously revoked will. Have to formally revive a will.

Question 15

Le Roux v Le Roux 1963

Answer 15

T destroys will supposing an earlier, revoked will will be revived.
acted on erroneous supposition, no revival will occur - BECAUSE T didn’t possess animus revocandi to revoke the later will.

Question 16

How can revival of a previously revoked will occur?

Answer 16

By:

• re-executing a revoked will
• executing a reviving document (no testamentary provisions in this document, only a desire to revive a previously revoked will)

Question 17

How can a reviving document have its intended effect?

Answer 17

must be validly executed in accordance with the formalities of s2(1)(a) of WA

Question 18

Moses v Abinader 1951

Answer 18

Possibility of reviving a revoked will by means of a reviving document accepted in this case.

Question 19

what are the requirements set out in Moses v Abinader 1951 for a reviving document to be effective?

Answer 19

Following requirements must be met:

• original will must still exist (cant revive totally destroyed will)
• original will must have been validly executed according to execution formalities
• must be a reviving document, validly executed according to execution formalities
• testator’s intention to revive revoked will must be clearly evident from the reviving document.

Question 20

s2A of the Wills Act allows the court to do what?

Answer 20

Bestows HC power to condone certain acts of revocation that would not necessarily have brought about effective revocation of a will in terms of the common law

Question 21

What 3 acts of revocation are condonable by the court?

Answer 21

• Written indication on a will/to a 3rd party by the testator that they wanted to revoke their will
• If Testator performed any other act regarding their will/act apparent on their will showing they intended to revoke it (e.g., cutting out witness signatures on the first page)
• Testator drafted another document/had a 3rd party draft another document - thus wanting to revoke all/part of existing will (but doesn’t comply w/ execution formalities etc.)

Question 22

s2B of Wills Act

Answer 22

if a person dies within 3 months of the termination of their marriage, and they executed their will before the end of their marriage, the bequest to the spouse will lapse.

• this is bc spouse ‘predeceased’ deceased.
• • this only applies within 3 months, if its 4 etc., bequest to spouse remains.

Question 23

Louw v Kock 2017

Answer 23

Whether testamentary appointment of surviving former spouse as sole heir of first dying former spouse is sufficient to meet criteria established by provision in s2B that Testator, who died w/in 3 months of divorce nevertheless intended to benefit their previous spouse regardless of the end of the marriage?

• WCC said NO, mere appointment of survivor as sole heir does not meet intention requirement to negate s2B’s prescript regarding inability or surviving divorcee to inherit under dead’s will.
• required stronger indication - through wording of will/making of new one

Question 24

JW v Williams-Ashman 2020

Answer 24

Legal question was constitutionality of s2B - does it infringe on right to property (s25 of CSA), right to access the court (s34 of CSA) or public policy?

• s25: NO, bc serves legitimate purpose of surviving ex-spouse from unfairly benefiting from will made before termination of marriage
• s34: not procedurally unfair because contains neither ouster clause or time bar, so doesn’t amount to unconstitutional limitation of access to court.
• public policy: section merely states indisputable conclusion that would take effect if stipulated factual requirements were met.