Will amendments Flashcards
What are the 3 ways a will can be amended?
- making manuscript amendments to the original will
- making a codicil to an existing will
- revoking the existing will and creating a new one
What governs the rules on altering a will or codicil by hand?
S21 WA 1837
S21 WA 1837 reads:
No obliteration, interlineation or other alteration made after the execution shall be valid or have any effect - except so far as the words before such alteration shall not be apparent, unless the alteration shall be executed in like manner as required of the execution of a will
In the context of altering a will, explain obliteration
Obliteration - where the text has been crossed out in such a way that the original text is illegible
In the context of altering a will, explain interlineation
Interlineation - where writing is inserted between the existing lines of the document, often adding something that was previously omitted
In the context of altering a will, explain other alterations
Other alterations - include additions added at the end of a will, a strike through of text which is still legible
What is the general rule with post-execution alterations?
Post-execution alterations are generally invalid and unenforceable
However if the alternation was made before execution it may be valid
Are attested alterations of a will valid?
These are valid if an alteration is executed like a will - the witnesses do not need to be the same people who witnessed the will
General rule for unattested alterations and validity?
The general rule is that unattested alterations are invalid as they are presumed to have been made post execution - however there are some exceptions
Exceptions - unattested alterations
- Blank space - where a blank space has been completed it is presumed that this occurred before execution
- obliteration - where the original wording is not apparent because it has been obliterated, it is treated as being revoked and the alteration has effect
Alterations that take effect
- made before execution of the will
- obliterations with the intention to revoke
- attested alterations
- completion of blank spaces
- confirmation by re-execution or codicil with reference to the alteration
Alterations not given effect
- made after execution
- obliteration without the intention to revoke or by third parties
- obliteration as conditional revocation
- unattested alterations
What is a codicil?
A legal document that adds or amends an existing will
Do the rules relating to validity of a will apply to codicils?
Yes - to make a valid codicil the testator must have TC, knowledge and approval, and comply with s9 WA requirements
When are codicils appropriate?
- creating a new will provision
- edit an existing will provision
- revoke a provision
Is there a maximum number of codicils that can be made?
No there is no legal maximum number - but good practice to keep it at a limited number
Republishing a will
When T executes a codicil, this act republishes the will - meaning the will is given effect as if it had been executed on the date of the executed codicil
Revocation in codicils
A codicil may revoke only part of a will or the entire will - if a codicil revokes an entire will, unless the codicil contains new terms, T will effectively die intestate
Revival in codicils (with an exception)
A codicil can revive a will that was previously revoked if this is T’s intentions (under s22 WA 1837)
However if the original will was destroyed then it cannot be revived
Ways of revoking a will (or clause)?
- Destruction
- An effective alteration
- Revocation by a new later will
- Revocation by a new later codicil
- Testator’s subsequent marriage
- Testator’s divorce
How can a will be revoked by destruction under s20 WA 1837?
A will may be revoked by the testator burning tearing or otherwise destroying it - provided there is also an intention to revoke the will
What are the 2 required elements for revoking a will by destruction?
- Physically destroying the will
- with the intention of revoking the will
Is testamentary capacity required to revoke a will?
Yes - the same as making a will, TC is required to revoke the will
Is complete destruction of an original will without TC a valid revocation?
No - T must have TC to revoke a will by destruction
Key term: conditional revocation
If a testator amends their will by hand to substitute a new legacy /gift for an existing beneficiary, they may intend to revoke the original gift, but only if the new/amended version is valid
What is the position if an amendment to a will is not valid?
If an amendment is not valid, the original will or gift has not been revoked and remains - therefore evidence of the original version may be submitted to the probate registry
Does the original copy of the will need to be destroyed to revoke it?
Yes the original will must be destroyed rather than a copy
What happens if T does not destroy all parts of a will?
This will depend on what parts remain - the revocation is only partial if the will can operate with what remains
Can another person validly revoke a will for T?
Yes - but only where it is at the direction of T and in their presence
Revocation for missing or damaged wills?
There is a presumption that missing or damaged wills are revoked
Presumption of a missing will
Where its known that T made a will and kept in their possession, if this is missing it is presumed that T destroyed it with the intention to revoke - unless there is evidence to show otherwise
Presumption of a damaged will
Where its known that T made a will and kept in their possession, if this is damaged it is presumed that T destroyed it with the intention to revoke - unless there is evidence to show otherwise
Rebutting the presumed position regarding damaged or missing wills?
Those administering the estate will have the burden of rebutting the presumption of a missing or damaged will
Revocation of a will by a new will
Express revocation clauses are standard - they are to ensure that all previous wills are revoked so there is only one valid will at one time
Are express words of revocation required to revoke by will?
Yes - express words of revocation are required to revoke a will
Is there ever cases where a testator may need more than one valid will at one time?
Yes possibly - say for example if the T has property abroad it may be practical to have 2 valid wills dealing with property separately
Principle of implied revocation by will
If a new will does not contain an express revocation clause, it is implied that the earlier will is revoked and the later will is given priority
Revoking a will by codicil
A codicil may revoke an entire will or a clause within it - but usually codicils only revoke a clause in a will with express wording
Express wording in a codicil to revoke a will?
Where express wording of revocation is missing, the codicil only revokes the will insofar as it is inconsistent with the will
Mutual wills - standard position
After making a will, even if mutual, a testator is free to change it and a will cannot be irrevocable
Mutual wills - constructive trust exception
Where two people have agreed to not amend their wills without each others consent - if one person does, then a constructive trust may be imposed over the property on the terms previously agreed. This would limit the effect of a new will
Are mutual wills common?
No and they should be approached with care
Are mirror wills and mutual wills the same?
No - mirror wills are commonly used between couples
What is the affect of a mirror will?
Example - each couple makes a mirror will that leaves their estate to the surviving partner, or if they do not survive it passes to their children
Do mirror wills carry any constructive trust exceptions?
No - executing a mirror will does not imply that there is an agreement not to revoke the will so no constructive trust is imposed
Revoking a will by marriage
When a person marries, this is an automatic revocation in full of any will or codicil, even when this is not T’s intention - s18 WA 1837A
Are wills automatically revoked by marriage or civil partnerships?
Yes - s18 WA 1837
Wills in contemplation of marriage
It is possible to avoid the effect of s18, by drafting a will in contemplation of marriage
What should a will in contemplation of marriage include?
The will must include the name of the future suppose and identify the intended ceremony - must also include express wording that T does not want the will to be revoked on the event of their subsequent marriage
Revocation by divorce - general position
If a married testator gets divorced, the divorce order automatically operates as a partial revocation of their will
