Wills

Question 1

What are the options available to a testator if the will in its current form does not reflect their wishes?

Answer 1

May choose to make:

• an entirely new will
• a codicil to an existing will
• make manuscript amendments to their original will

Question 2

What are the types of amendments in a will?

Answer 2

• Obliteration: where the text has been crossed out in such a way that the original text is illegible
• Interlineation: where writing has been inserted between the existing lines of the document, often to add something that was previously omitted
• Other alterations (additions at the end of the will, strikethrough of text which is still legible)

Question 3

Are amendments to a will valid?

Answer 3

Alterations made prior to execution are valid.

General rule is that amendments made after the will is execute are invalid and unenforceable. The alteration has no effect and the original wording is given effect to.
Exception:
If the alteration is executed like a will

Question 4

When will amendments to a will made after execution be valid?

Answer 4

If the alteration is executed like a will (signed by the testator and two witnesses in accordance with s9 WA) alongside the alteration it is valid.

Witnesses do not have to be the same people who witnessed the will. Initials rather than full signatures are sufficient.

Question 5

What is the presumption for timing of alterations?

Answer 5

Rebuttable presumption that an alteration was made after the execution.

Therefore, even if amendments are made before the will as a whole is executed, should still attest the alterations.

PRs could produce affidavit evidence of the state and condition of the will at the time of execution confirming when alteration was made (although this requires witnesses to accurately recall what the will looked like at execution.

Question 6

Besides specifically attesting a manuscript amendment, how else can a testator confirm manuscript amendments?

Answer 6

• Re-executing the amended will as a whole
• Executing a subsequent codicil that affirms the will it amends

Question 7

Are there any exceptions to the general rule that unattested alterations are invalid as they are presumed to be made after execution?

Answer 7

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

E.g.
I give to person A the sum of £[ ] (number in box handwritten in)

• Presumption of timing can be rebutted by internal evidence from within the will or by external evidence (e.g. affidavit of plight and condition signed by witnesses)

Question 8

What is the effect of obliteration?

Answer 8

Obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective.

Question 9

Can you use extrinsic evidence to determine an original gift in the context of obliteration?

Answer 9

Generally, no, original wording must be able to be deciphered by natural means (no extrinsic evidence (drafts) or infra-red technology.

If testator did not intend to revoke gift or third party made the amendment - can use extrinsic evidence to establish the original gift and it would be valid.

Question 10

What is a condition intention to revoke?

Answer 10

Usually found where the testator attempted to substitute another figure/item for the original wording and the attempt has failed.

The court will usually find that the testator only intended to revoke the original gift IF the substitution was successful.

Question 11

What happens if a conditional intention to revoke is unsuccessful?

Answer 11

There is no valid revocation of the original gift.

The original gift, if it can be ascertained should be given effect and extrinsic evidence is permitted to establish the original wording.

Question 12

When are manuscript changes appropriate?

Answer 12

Generally, clients should be advised against making any manuscript alterations to their will (or codicil) to avoid any issues or disputes.

May be appropriate where:

• No impact on the interpretation or meaning of the will. This could include correction of a typo, change to beneficiary’s address or correction of spelling of a name.
• Changes must be made urgently and a codicil or new will cannot be prepared. This may arise where a testator requires urgent hospital treatment or is due to travel abroad.

These should all be initialed by testator and witnesses, even if unimportant or before execution - avoids requirement to rebut the presumption on timing.

Question 13

What is the general rule under s21 Wills Act 1837?

Answer 13

The general rule in s.21 Wills Act 1837 is that unattested alterations are deemed to have been made after execution and are therefore invalid. In the absence of evidence to the contrary, the alteration is ineffective.

Question 14

What is a codicil?

Answer 14

A formal testamentary document that amends an earlier will, rather than replaces it. Both documents remain active and are intended to be read together.

Can revoke a will in whole or in part.

A codicil may revive a will that was previously revoked (unless it was revoked by way of destruction).

Question 15

Does a codicil have to comply with any rules?

Answer 15

To make a valid codicil, a testator must have:

• testamentary capacity
• knowledge and approval (of the codicil, and the will and any previous codicils, and the will and any previous codicils referred to)
• comply with s. 9 Wills Act 1837

Question 16

How many codicils can a person have?

Answer 16

There is no legal maximum number of codicils but given the potential for confusion, best practice to limit the number of codicils made to an original will.

Question 17

What can codicils be used for?

Answer 17

• Creating new provisions in a will
• Editing existing provisions in a will
• Revoking provisions in a will

Question 18

What are some common drafting issues in codicils?

Answer 18

• Not expressly noting a change to the testator’s name or address
• Not affirming the parts of the original will which remain unchanged
• Missing or incorrect cross reference to the date of the original will or earlier codicil
• New codicil the refers only to the original will and not the previous codicil(s)
• The effect of the codicil does not make sense when read in conjunction with the original will and/or fails to take into account changes made by a previous codicil
• Incorrect references to clause numbering

Question 19

What is the effect of a codicil on the date of the will?

Answer 19

The codicil ‘republishes’ the will (and any codicils) to which it expressly refers.

Will is given effect to as if it had been executed on the date on which the codicil was executed.

***may impact specific gifts - should consider the effect of the will being republished to ensure testator’s intention is still met.

Question 20

How can you correct a s15 mistake?

Answer 20

s15: if a beneficiary or their spouse witnesses a will, s15 Wills Act has the of denying the beneficiary their inheritance.

However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to, and effect of s 15 is avoided.

Note: s15 applies to codicils in same way, so a witness to a codicil must not benefit under either the original will or codicil.

Question 21

What is the effect of s15 Wills Act 1837?

Answer 21

If a beneficiary or their spouse witnesses a will, s15 Wills Act has the of denying the beneficiary their inheritance.

Note this applies to codicils in same way, so a witness to a codicil must not benefit under either the original will or codicil.

Question 22

How can codicils be used to correct issues in the will?

Answer 22

• s15 errors
• unattested manuscript amendments
• if a will was not properly executed, codicil can validate original will

Question 23

How can a will be revoked?

Answer 23

• Destruction
• Revocation by later will
• Revocation by later codicil
• Testator’s subsequent marriage
• Testator’s divorce
• An effective alteration

Question 24

How can a will be revoked by destruction?

Answer 24

s20 Wills Act 1837, a will may be revoked by the testator by:

• burning, tearing or otherwise destroying it
• provided there is also an intention to revoke the will

One without the other is ineffective.

Note:
- A physical act of destruction is needed; writing ‘revoked’ on the will would not be effective.

• Testator requires the same testamentary capacity to revoke a will as to make a valid will. Complete destruction of the original will by a testator who lacks capacity or intention is not effective and the will remains valid (affidavit evidence would be required for a copy of the will to be admitted to probate).

Question 25

Can a will be valid after destruction?

Answer 25

• Original must be destroyed (so still valid if copy is destroyed)
• If another person destroys the will, this will not be effective (unless it is at the direction of the testator and in his presence)
• If not all parts of the will are destroyed - can be a case of partial revocation. BUT only id the will can operate effectively with the sections that remain.

Question 26

What is presumption as to revocation regarding missing wills?

Answer 26

The testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise.

Question 27

What is presumption as to revocation regarding damaged wills?

Answer 27

The testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise.

Question 28

Who has the burden of rebutting a presumption of revocation?

Answer 28

Those administering the estate

Question 29

What is required to rebut a presumption of revocation?

Answer 29

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

Question 30

What is the effect of not including a revocation clause (when you have an earlier will).

Answer 30

Testator will have more than one valid will.

They will have a combined effect but to the extent they are inconsistent the later will impliedly revokes the earlier will, so the later will is given priority.

Question 31

What happens to the codicils of a will that is revoked by destruction?

Answer 31

Revocation will not necessarily revoke any codicils to it.

Question 32

Can a codicil revoke a will?

Answer 32

A codicil may revoke a will or clauses within it.

Will usually only revoke part of a will, and does so by express wording. A codicil should state the extent to which it revokes or confirms the previous will.

Question 33

What happens if express words of revocation are missing in a codicil?

Answer 33

The codicil only revokes the will to the extent it is inconsistent with the will.

Question 34

What is a mutual will?

Answer 34

Where one testator agrees with another testator to each make a will on terms agreed between them. Both testators also agree that neither of them will amend their will without the consent of the other.

If a testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.

Are rare and should be approached with care.

Question 35

What is a mirror will?

Answer 35

Common and often used by couples. The wills ‘mirror’ each other.

e.g. each couple makes a will that leaves their estate to the survivor of them, but if the other does not survive the assets pass to their children.

Executing a mirror will does not imply that there is an agreement not to revoke the will later and there is no constructive trust imposed.

The survivor of the couple is free to revoke their will at any time prior to the death of either of them.

Question 36

What is the effect of marriage on a will?

Answer 36

By s18 WA, when a person marries or enters a civil partnership, this automatically revoked in full any will (and codicil) made prior to the marriage, even if this is not the testators intention.

Question 37

Can you avoid the effect of s18 WA?

Answer 37

Yes. You can draft the will in contemplation of marriage/cp.

The will must name the future spouse/cp and identify the intended ceremony.

It must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage/civil partnership.

It is not possible to avoid revocation by making a will in contemplation of:
- a hypothetical marriage
- a marriage/cp to one person but then marry/enter a cp with someone else

Question 38

What is the effect of divorce/dissolution of a will?

Answer 38

Court order confirming divorce or dissolution automatically operates and a limited/partial revocation of their will (if will was made PRIOR to divorce/dissolution).

S18A and C take effect as if former spouse or civil parter had died on the date of the court order unless will expressly states otherwise.

Means:
- an appointment of the former spouse/civil partner as executor or trustee is not effective; and

• a gift in the will to the former spouse or civil parter will fail

Question 39

What are the requirements of a valid will?

Answer 39

Testamentary Capacity

Knowledge and Approval

Formal Requirements (s9 Wills Act)

Question 40

What is the test in Banks v Goodfellow?

Answer 40

Sets out common law test for testamentary capacity. A testator must:

• understand they are signing a will and its effects (but doesn’t need to know every detail)
• appreciate extend of property of which they are disposing - generally, don’t need to know everything in detail
• understand and appreciate the moral claims to which they ought to give effect (but don’t have to) and have no disorder of the mind (delusion effecting will)

Question 41

When must the testator have testamentary capacity?

Answer 41

Must have testamentary capacity at the time the will is executed.

Note: Parker v Felgate exception

Question 42

What is the Parker v Felgate exception?

Answer 42

Exception to the rule that the testator must have testamentary capacity at the time the will is executed.

A testator who lacks capacity can still make a valid will provided they:

• Had capacity at the time they gave instructions for the preparation of the will; and
• The will was prepared in accordance with those instructions; and
• At the time of execution the testator understood they were signing a will for which they had previously given instruction

Question 43

What is the golden rule?

Answer 43

When taking instructions for a will from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of capacity and a record of the assessment and conclusion should be made.

Not a legal obligation but best practice - will reduce likelihood of later disputes.

Question 44

What is the presumption of capacity?

Answer 44

Capacity is presumed if the will on the face of it appears rational and has been duly executed.

Anyone who wishes to challenge the validity of the will on grounds of lack of capacity must provide evidence sufficient to raise doubt and rebut the presumption.

Burden then shifts to propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test.

Question 45

Can someone make a will if they lack testamentary capacity?

Answer 45

Generally no.

But possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves.

Question 46

What is knowledge and approval?

Answer 46

Must be present at time of execution.

A testator must have a general intention to make a testamentary document which disposes of property and taken effect following their death.

Testator also required to have a specific intention to make the particular will they sign - known and approve its contents.

Practically, testator must read will and understand it and by signature give effect to its terms.

Question 47

What is the presumption of knowledge and approval?

Answer 47

Presumed if testator had testamentary capacity and the will was executed in accordance with the requirements of s 9 Wills Act 1837.

If evidence which raises doubt, presumption rebutted and purporters of the will must prove.

No presumption where:
- blind or illiterate
- will was signed by someone on behalf of testator
- suspicious circumstances

Question 48

What do you do if there is no presumption of knowledge and approval?

Answer 48

Usually use an attestation clause.

If no attestation clause can also use an affidavit of knowledge and approval.

Question 49

What happens if a will is made as a result of undue influence?

Answer 49

Where whole of the will: invalid

Part of the will: remainder may be given effect provided omissions do not “upset the whole tenor of what remains”

Question 50

What is undue influence?

Answer 50

Where a testator is coerced into making a will contrary to true intention - not genuinely exercised choice but surrendered to pressures they were not able to withstand.

Goes beyond persuasion, not unlawful to encourage someone to make a will or persuade them certain provisions should be included.

Question 51

What is the burden of proving undue influence?

Answer 51

Lies with person making the allegation and the court requires evidence - must be shown the facts are inconsistent with any hypothesis other than undue influence.

Physical and mental strength of testator will be relevant.

Question 52

What are the s9 WA requirements of a will?

Answer 52

(a) in writing and signed by testator or some other person in his presence and by his direction - includes handwritten and typed/printed text, any mark may constitute signature (preferable to use normal signature)

(b) appears that the testator intended by his signature to give effect to the will - satisfied by signing at end of the will, may be issue if in beginning or middle

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time
- testator either signs in person or acknowledges the signature of the person who signed on their behalf
- witnesses do not need to see them sign, enough to acknowledge in front of them
- two is the minimum

(d) both witnesses must sign the will in front of the testator but it is not necessary for each witness to also sign in front of each other

Question 53

What is an attestation clause?

Answer 53

An attestation clause describes the circumstances under which the will was executed.

No legal obligation but a properly drafted attestation clause raises the presumption that the will was executed in accordance with the requirements of s9 WA (presumption of due execution) - otherwise proof will be needed.

Should be amended to reflect any special circumstances and provide evidence of the requisite knowledge and approval e.g. if testator is blind or illiterate

Question 54

What is the effect of s15 Wills Act 1837?

Answer 54

Any gifts to an attesting witness or their spouse are void.

If there are at least two other witnesses they will not be caught, or if codicil with different witnesses.

Question 55

What is the forfeiture rule?

Answer 55

The forfeiture rule is a law which prevents a convicted person from benefitting from their crime in any way.

Therefore, if a husband is responsible for the wife’s unlawful killing and he cannot benefit from the wife’s estate under the forfeiture rule.

Applies both to survivorship and gifts in wills.