Study Unit 7: The Revocation of Wills Flashcards
Can a Testator change their mind about the distribution of assets in their will?
Yes, can revoke their will and make new one with different dispositions
What are the two requirements for revocation?
- Needs to be a legally recognised act of revocation
2. Testator must have ‘animus revocandi’ (i.e., intention to revoke)
What are the two types of revocation?
Tacit and Express
What are the two types of Express Revocation?
- Execution of a later will/Testamentary document containing an express revocatory clause/statement.
- Destruction of a will
What are the requirements for documents with revocatory clauses in them?
- 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
what are the two forms of destruction recognised in the common law?
- physical destruction - document perishes
- symbolic destruction - document survives, but is damaged/defaced.
- will is revoked upon destruction
- original will must be destroyed, destruction of a copy is invalid
Marais v The Master 1984
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.)
What are the presumptions upon the destruction of a will?
- 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
What are the two types of Tacit Revocation?
- execution of a subsequent conflicting will that doesn’t contain an express revocatory clause
- ademption (‘ademptio’)
what are the requirements when a second conflicting will is executed without a revocatory clause?
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)
What is Ademption?
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
What happens if Testator revokes a will on the condition that an uncertain event occurs/on the basis of a specific supposition?
Revocation is only effective if condition is fulfilled/supposition is correct
What is the Doctrine of Dependent Relative Revocation?
Where the intention to revoke a will depends on a future condition/supposition that proceeds to be incorrect, revocation is ineffective.
If a testator revokes a will in order to revive a previously revoked will, will that supposition be correct?
NO, Common Law is clear that revoking a will doesn’t bring into effect a previously revoked will. Have to formally revive a will.
Le Roux v Le Roux 1963
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.
How can revival of a previously revoked will occur?
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)
How can a reviving document have its intended effect?
must be validly executed in accordance with the formalities of s2(1)(a) of WA
Moses v Abinader 1951
Possibility of reviving a revoked will by means of a reviving document accepted in this case.
what are the requirements set out in Moses v Abinader 1951 for a reviving document to be effective?
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.
s2A of the Wills Act allows the court to do what?
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
What 3 acts of revocation are condonable by the court?
- 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.)
s2B of Wills Act
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.
Louw v Kock 2017
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
JW v Williams-Ashman 2020
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.
