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will amendment Flashcards

1
Q

What are the options for a testator if they wish to amend their will?

A

• make manuscript amendments to their original will
• make a codicil to an existing will
• revoke their existing will.

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2
Q

Are manuscript alterations made by another person valid or invalid?

A

Alterations made by another person are invalid unless intended by the testator and made in their presence and at their direction.

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3
Q

What does s 21 WA say about amendments?

A

No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of a will.

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4
Q

What is Obliteration?

A

Where the text has been crossed out in such a way that the original text is illegible.

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5
Q

What is Interlineation?

A

Where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.

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6
Q

What are examples of other alterations?

A

Include additions added to the end of the will, a strike through of text which is still legible.

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7
Q

What is the general rule on alterations?

A

The general rule is that alterations made after the will is executed are invalid and unenforceable.

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8
Q

What if the alteration was made before execution?

A

If the alteration was made before execution with testator’s knowledge & approval then it would be valid.

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9
Q

Why are alterations to the Will problematic?

A

Because it is difficult to know from the face of the Will when the alteration occurred.

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10
Q

What is the rebuttable presumption on alterations?

A

There is a rebuttable presumption that an alteration was made after execution.

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11
Q

What is the rebuttable presumption on unattested alterations?

A

An unattested alteration is rebuttably presumed to have been made after execution.

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12
Q

When will an alteration be valid?

A

If an alteration is executed like a will alongside the alteration it is valid.

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13
Q

What should a testator who needs to make manuscript amendments be advised to do?

A

A testator who needs to make manuscript amendments to their will should be instructed to execute the amendments in the same way as a will.

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14
Q

If the manuscript amendment itself is not specifically attested, what can confirm it?

A

• re-executing the amended will as a whole
• executing a subsequent codicil that affirms the will it amends.

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15
Q

What is the exception/presumption of a blank space?

A

Where a blank space has been completed there is a presumption that this occurred before execution.

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16
Q

when can the black space presumption be rebutted?

A

it can be rebutted by internal evidence in the Will or by external evidence (e.g affidavit by witness) that prove that the space was blank when T executed the Will

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17
Q

What is the exception of Obliteration?

A

If the original wording is not apparent because it has been obliterated, the obliteration is treated as having been made by the testator with an intention to revoke.

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18
Q

What is conditional intention to revoke?

A

A conditional intention to revoke is usually found where the testator attempted to substitute another figure for the original wording.

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19
Q

When are manuscript alterations appropriate?

A

• The amendments have no impact on the interpretation or meaning of the will.
• The changes must be made urgently and a codicil or new will cannot be prepared.

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20
Q

In summary, which alterations are given effect to?

A
  1. Made before execution of the will/codicil
  2. Obliterations with intent to revoke
  3. Attested alterations
  4. Completion of a blank space
  5. Subsequently confirmed by re-execution or codicil.
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21
Q

In summary, which alterations are not given effect to?

A
  1. Made after execution of the will/codicil
  2. Obliterations without intent to revoke
  3. Obliterations by 3rd parties
  4. Obliterations as conditional revocation
  5. Unattested alterations.
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22
Q

What does a properly drafted will do in relation to previous wills?

A

A properly drafted will usually replaces any previous wills so the testator has only one valid will at a time.

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23
Q

What is a codicil?

A

A codicil is a formal testamentary document that amends an earlier will, rather than replaces it.

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24
Q

What must a testator do to have a valid codicil?

A

To make a valid codicil a testator must have testamentary capacity, knowledge and approval, and comply with s 9 WA.

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25
When are codicils appropriate?
• create new provisions in a will • edit existing provisions in a will • revoke provisions in a will.
26
If the testator wants to make significant or multiple changes, what is it advisable for them to do?
It is usually advisable to execute a new will rather than make a codicil.
27
Is there a legal maximum number of codicils a person can make?
There is no legal maximum number of codicils a person can make.
28
When making a codicil, what should it refer to?
The codicil should expressly state the extent to which the testator confirms or revokes their earlier will.
29
When will a codicil revoke an earlier will?
The codicil will only revoke an earlier will to the extent there is inconsistency between them.
30
What can be admitted to explain discrepancies regarding references to the date of the will?
Affidavit evidence can be provided to explain the discrepancy.
31
What happens when a testator executes their codicil?
This acts to 'republish' the will to which it expressly refers.
32
What is the effect of re-publishing the will due to the execution of a codicil?
The will is given effect to as if it had been executed on the date on which the codicil was executed.
33
What is the effect of a codicil on s.15?
If a beneficiary witnesses a will, s 15 WA denies the beneficiary their inheritance.
34
What happens to the witness of a codicil if they are also a beneficiary?
Section 15 WA applies to a codicil in the same way as a will.
35
What is the effect of a codicil in relation to unattested manuscript amendments?
These can be confirmed by a later codicil if the amendments are made before the codicil is executed.
36
What happens if a will (or previous codicil) was not properly executed?
Due execution of the codicil will validate the original will to which it refers.
37
What happens if a codicil expressly revokes a previous will?
Unless the codicil contains new terms, the testator will effectively be intestate.
38
Can a codicil revive a revoked will?
A codicil can also revive a will that was revoked previously if this is the testator's intention.
39
If a codicil revokes all/part of a will, and the codicil itself is then subsequently revoked, will this re-instate the terms of the will?
No.
40
How can a will be revoked?
• Destruction/an effective alteration • Revocation by a later will • Revocation by later codicil • Testator's subsequent marriage • Testator's divorce.
41
How is a will revoked by destruction?
By s 20 WA a will may be revoked by the testator by 'burning, tearing or otherwise destroying' it.
42
Is a physical act of destruction needed to revoke a will by destruction?
Yes - A physical act of destruction is needed.
43
Will destroying a copy of the will be effective revocation by destruction?
No - The original will must be destroyed.
44
Does the testator require the same testamentary capacity to revoke a will as to make a valid will?
Yes - Complete destruction of the original will by a testator who lacks capacity or intention is not effective.
45
What are the two ways the intention to revoke may be categorised?
• absolute • conditional.
46
What does Dependent relative revocation mean?
If a testator amends their will by hand to substitute a new legacy for an existing beneficiary, they may intend to revoke the original gift but only if the new version is valid.
47
What happens if the testator does not destroy all parts of the will?
The revocation is only partial if the will can operate effectively with the sections that remain.
48
What happens if another person destroys the will?
This will not be effective unless it is at the direction of the testator and in his presence.
49
What is the presumption if a testator's will is missing after their death?
The testator is presumed to have destroyed their will with an intention to revoke it.
50
What is the presumption if a testator's will is damaged after their death?
The testator is presumed to have carried out the act of damage.
51
What is the presumption if a testator's will or codicil is missing after their death?
The testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise.
52
What is the presumption if a testator's will or codicil is damaged after their death?
The testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise.
53
Who has the burden of rebutting a presumption of revocation where a will is lost or damaged?
Those administering the estate of the deceased will have the burden of rebutting a presumption of revocation.
54
What can those administering the estate of the deceased argue to rebut a presumption of revocation?
1. A valid will existed when the deceased died but was lost/damaged after death. 2. The deceased did not intend to revoke their will. 3. The deceased did not carry out or give instruction for the act of destruction.
55
What is an express revocation by will?
Including a clause in the will stating that you revoke all former wills and testamentary dispositions and declare this to be your last will.
56
Is saying 'last will and testament' sufficient to revoke previous wills?
No, it needs to be an express revocation.
57
What is an implied revocation by will?
This is when there are two valid wills because one does not include an express revocation clause that revokes the earlier one.
58
How does a revocation by codicil work?
A codicil will usually only revoke part of a will, and do so by express wording.
59
What happens if express words of revocation are missing in a codicil?
The codicil only revokes the will to the extent it is inconsistent with the will.
60
Does revocation of a will by destruction revoke any codicils to it?
No, revocation of a will by destruction will not necessarily revoke any codicils to it.
61
Can a will be made irrevocable?
No.
62
What is a mutual will?
Where one testator agrees with another testator to each make a will on terms agreed between them.
63
What happens if a testator attempts to revoke their mutual will contrary to the previous agreement?
Equity may impose a constructive trust over that testator's property on the terms previously agreed.
64
What are mirror wills?
The wills of a couple which mirror each other.
65
Does executing a mirror will imply an agreement not to revoke the will later?
No, the survivor of the couple is free to revoke their will at any time prior to the death of either of them.
66
What is revocation by marriage?
When a person marries or enters into a civil partnership, this automatically revokes in full any will made prior to the marriage.
67
How can a person avoid revocation by marriage?
By drafting the will in contemplation of marriage/civil partnership.
68
What is the effect of a will stating it shall not be revoked by marriage?
A will containing this clause is effective from execution and not revoked by the testator's later marriage.
69
What is the effect of a will that is effective only upon marriage?
A will containing this clause ensures the will is not revoked by the testator's later marriage but is not effective until the marriage takes place.
70
What is a revocation by divorce?
If a married testator divorces their spouse, the will takes effect as if the former spouse had died on the date of the court order.
71
What is the effect of revocation by divorce if the former spouse is appointed as an executor?
An appointment of the former spouse as executor or trustee is not effective, and a gift in the will to the former spouse will fail.
72
What happens if the former spouse was the sole executor?
A statutory order is followed and an administrator will be appointed in the absence of any executor who can act.
73
What happens to the gift that would have been given to the former spouse?
The items may pass to a named alternative beneficiary, under the general gift of residue, or may result in a full or partial intestacy.
74
How can a testator avoid the effect of revocation by divorce?
By expressly stating that he/she wants a spouse or civil partner to inherit, notwithstanding any divorce.
75
Does revocation by divorce apply to wills made after a divorce?
No, any will made afterwards is unaffected.
76
Does revocation by divorce affect the right of the former spouse to bring a claim against the deceased's estate?
No.
77
What is the purpose of a revocation clause?
It ensures that all previous wills/codicils are revoked so only one valid will exists at any one time.

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