Will Amendment Flashcards
What three ways can a testator amend their Will?
The can
- make manuscript amendments to their original Will
- make a codicil to an existing Will
- revoke their existing Will
When will an alteration by another person to a Will not be invalid?
Where it is intended by the testator and made in their presence
What is an obliteration?
The text has been crossed out in such a way that the original text is illegible
What is interlineation?
Where writing has been inserted between the existing lines of the document, often to add something that was previously omitted
What are other alterations?
Include additions added at the end of the Will, a strike through of text which is still legible
What is the general rule in relation to post-execution alterations?
They are invalid and unenforceable
Original wording is given effect to
What is the general rule in relation to pre-execution alterations?
Provided made with testator’s knowledge and approval, it would be valid
What is the presumption in relation to timings on alterations?
Rebuttable presumption that an alteration was made after execution
How can the presumption that alteration was made after execution be rebutted?
By PRs producing affidavit evidence of the state and condition of Will at time of execution as according to witnesses
How can an alteration be made to be valid?
If it is executed like a Will ie signed by testator and two witnesses in accordance with s 9 WA)
What exception is there to rule that unattested alterations are invalid with blank spaces?
- where blank space has been completed, there is presumption this occurred prior to execution
- timing presumption can be rebutted by internal evidence from within Will or external evidence
What exception is there to rule that unattested alterations are invalid with obliterations?
- if original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made the testator with an intention to revoke the alteration will be effective
- apparent means the words cannot be deciphered by natural means (reading or holding it to light, but not infra red technology) and without need for extrinsic evidence (draft wills)
What if a testator makes obliterations but had no intention to amend revoke the gift/wording?
Then extrinsic evidence can be used to establish original gift and infra-red technology would be allowed
Original wording would be valid
What is the effect of obliteration with conditional intent for revocation?
Extrinsic evidence to prove original wording would be permitted.
If original gift can be ascertained, then unless alteration proved to be valid, it will be given effect to
In what situations are manuscript changes appropriate?
- the amendments have no impact on the interpretation or meaning of the Will eg typos, change to beneficiary’s address or correction to spelling of a name
- the changes must be made urgently and a codicil or new Will cannot be prepared in time
What is a codicil?
Formal testamentary document that amends an earlier will rather than replaces it, and both documents remain active and are intended to be read together
Do the rules relating to the validity of a Will also apply to codicils?
Yes so T must have testamentary capacity, knowledge and approval, and comply with s 9 WA
When can codicils be used?
- to create new provisions in a Will eg add a legacy for a new beneficiary
- edit existing provisions in a Will eg change the value of a pecuniary legacy
- revoke provisions in a Will eg remove a particular beneficiary’s entitlement
What should codicils do with regards to previous Wills?
For avoidance of doubt, codicil should expressly state extent to which it confirms or revokes the earlier Will and any earlier codicils
What happens in the absence of express provision in a codicil that addresses revocation of previous Will?
Presumption that the terms of the original Will remain where possible
Codicil will only revoke an earlier Will to the extent there is inconsistency between them
When a codicil is executed, what happens to the original Will aside from any revocation?
It is republished meaning the Will which the codicil refers to is given effect to as if it had been executed on the date on which the codicil was executed
Can beneficiaries under codicil or will witness codicil?
No - any legacy to them would be void
How can a codicil incorporate post-execution manuscript amendments on Will?
By referencing them in the codicil itself
Can a codicil revoke previous Will?
Yes either in part or in full - opens risk of T dying intestate
Can a codicil revive a will that has previously been revoked?
Yes
If a codicil revokes a Will is itself revoked, does that revoked Will get re-instated?
Not automatically no
How can a testator revoke their Will?
- destruction/an effective alteration
- revocation by a later Will
- revocation by later codicil
- T’s subsequent marriage
- T’s divorce
How can a will be revoked by destruction?
- T has testamentary capacity
- T has intention to revoke the Will
- T burns, tears or otherwise destroys it (must be physical act)
What happens if T destroys Will but lack testamentary capacity to do so?
Will is still valid and affidavit evidence would be required for copy of Will to be admitted to probate
Must T destroy original Will or can a copy suffice?
Must be original
What is the effect of T only destroying parts of Will?
Other parts will remain
What happens if another person destroys the Will?
This will be of no effect unless at the direction of T in his presence
What presumption arises where a Will is missing?
T is presumed to have destroyed their Will with an intention to revoke it unless evidence is presented to the contrary
What presumption arises where a Will is damaged?
T is presumed to have carried out the act of damage/destruction with intention to revoke unless otherwise stated
Who has the burden of rebutting presumption of revocation in case of missing/damaged wills and how do they do it?
Those administering the estate bear the burden
They must show:
- a valid Will existed when the deceased died but was lost/damaged after death
- the deceased did not intend to revoke their Will
- the deceased did not carry out or give instruction for the act of destruction
When will revocation of previous Will in a new Will be effective?
Where express words of revocation are used
When will it be appropriate for the testator to have more than one valid Will?
Where they own assets abroad
What happens if there is a new Will that does not have a revocation clause?
Both Wills are valid.
To the extent they are inconsistent, the later Will impliedly revokes the earlier Will, so the new will is given priority
What is a mutual Will?
One where T agrees with another T to each make a Will on terms agreed between them
What happens if T tries to revoke a mutual will?
Equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new Will
Does a mirror will come with the same constructive trust as mutual will if one party revokes?
No - either party can revoke Will at anytime without trust arising
What is the effect of s 18 Wills Act with wills on marriage?
All wills prior to the marriage are revoked in full on marriage even if the testator does not intend this
Same if civil partnership
How can the effect of s 18 of Will being revoked on marriage be avoided?
If the Will is drafted in contemplation of marriage
Must name future spouse and identify intended ceremony. Must expressly confirm T does not want Will to be reduced on marriage/civil partnership
Will a Will in contemplation of marriage take effect even if marriage never takes place?
Yes - provided not express wording to the contrary
What happens to Wills on divorce?
Former spouse or civil partner will be treated as if they have died on date of divorce/dissolution
So former spouse cannot inherit or be executor
Subject to any contrary intention in Will that states to the contrary
Only effects wills made prior to divorce
If a former spouse is disinherited on divorce, is there any other way they can bring a claim against the estate?
Yes - still potential claim under Inheritance (Provision for Family and Dependants) Act 1975
