Wills 2

Question 1

When can a testator change their will?

Answer 1

Alterations are invalid unless:* They were made before execution* The alterations were executed like a will i.e. formalities are followed

Question 2

How can it be shown that an alteration to a will was made before execution?

Answer 2

• Statements from the witnesses or * The initials of the testator and their witnesses adjacent to the alteration, provided that the will reads naturally after the amendment.

Question 3

An executor presents a will to a solicitor. The will includes a gift to the testator’s cousin, Eleanor Rigby. The gift originally read: “I leave £100,000 to my cousin Eleanor Rigby”. However, there are lines through the £100,000 amount and above it in the testator’s handwriting is “£10,000”. Should the will be read as including a £100,000 gift to Eleanor or only a £10,000 gift?

Answer 3

If the solicitor or the witnesses are available to say the alteration was made before execution, then the £10,000 will be valid and the £100,000 will be invalid.

Question 4

What is the presumption regarding unattested alterations to wills?

Answer 4

An unattested alteration is presumed to have been made after execution unless it is filling in a blank space in a will form (such as “I Terry Testator being of sound mind …”). * The solicitor’s starting point is to see if they can make out the original words by ‘natural means’, e.g. by using a magnifying glass. * If the original words are apparent, then they may be admitted to probate rather than the amendment (i.e. original gift applies)* If the original words are not apparent, then the court will admit the will with a blank space where the words are obliterated (i.e. the gift will be revoked).

Question 5

S makes a will containing a clause leaving “£100,000 to my daughter, M”. He later decides to change the gift to M. The outcome of this depends on how it is done: 1. S draws a line through “£100,000” and writes above it “£200,000”. 2. S draws a line through “£100,000” and writes above it “£200,000”, but this time he signs his name next to it and gets two people to witness his signature. 3. S draws a thick line through “£100,000” so that the original wording is illegible. What is the outcome of each alteration?

Answer 5

1. This is an unexecuted alteration. The gift remains one of £100.000 to M. 2. This is an executed alteration, and the gift is amended to one of £200,000 to Mendi.3. This is an obliteration and will be treated as revoking the original gift to M. It is now a gift of nothing. If S wanted to add “£200,000” above the obliteration, this would be effective only if it is signed, initialled, and witnessed.

Question 6

What is a codicil?

Answer 6

Normally, it is a brief document that adds to, amends, or partially revokes an existing will (note, rarely used anymore). * The codicil must make reference to the will; * The requirements for a valid will apply equally for a valid codicil; * A clause should be included in the codicil confirming the unamended part of the will; and * A codicil may remedy a gift which was void because the beneficiary witnessed the will.

Question 7

When is a will revoked:* automatically by law* by deliberate act of the testator

Answer 7

Automatically by law* Marriage or Civil Partnership (unless contrary intention)* Divorce, Dissolution or Nullity (partial revocation regarding spouse only)Deliberate act of the testator* Executing a later will or codicil* Destruction

Question 8

If a testator makes a will and subsequently gets marries/enters a civil partnership, does this affect the will?

Answer 8

The will is revoked unless:* it appears from the will that, when it was made, the testator was expecting to marry a particular person and * that they intended that all or part of the will should not be revoked by that marriage. An express statement to this effect should be included in the will.

Question 9

If a testator makes a will and subsequently gets divorced, nullifies their marriage or dissolves their civil partnership, does this affect the will?

Answer 9

The will is partly revoked unless contrary intention is stated. The law treats the former spouse or civil partner as having died on the date of the divorce or dissolution. * If the former spouse or civil partner was appointed as an executor or trustee in the will, the appointment will be ineffective. * Any gifts to the former spouse or partner are revoked, and the property will not pass to them. * Any substitutional provisions in the will which are to take effect if the spouse or civil partner has predeceased the testator will be relevant if the marriage or civil partnership is dissolved or annulled. * The remainder of the will remains valid. These provisions do not apply on separation.

Question 10

If a testator separates from their spouse/civil partner, does this affect their will?

Answer 10

No

Question 11

T Testator has a valid will. A few years after executing her will, she marries her husband, H. T validly executes a new will after her marriage to H. Unfortunately, that marriage doesn’t work out, and T and H divorce. Then T dies in an accident before she has the chance to change her will. The will names H as the executor, and states that he should receive a large sum of money and a holiday home. Does H receive the gifts?

Answer 11

No, because of the divorce, the gifts to him are revoked so he doesn’t get the money or the holiday home. Also, his appointment as executor is ineffective.

Question 12

What effect does a later will or codicil have on an existing will?

Answer 12

• A will is revoked (wholly or partially) by a later will or codicil, or “by some writing declaring an intention to revoke the same and executed in the manner” of a will. * Note, a later will or codicil impliedly revokes an earlier testamentary disposition only to the extent that it is inconsistent with or merely repeats the terms of the earlier document. For the avoidance of doubt, it is usual for a will to contain an express revocation clause e.g. “I hereby revoke all previous wills and testamentary dispositions made by me”.

Question 13

A testator validly executed a will in 2015. It included three gifts, a gift of £5,000 to A, a gift of £10,000 to B, and the remainder to C. In 2020, the testator and A have a falling out and the testator executes a new will which contains only two gifts, £10,000 to B and the remainder to C. Is the gift to A revoked?

Answer 13

No, the 2015 gift to A is not revoked, because there is nothing inconsistent with it in the second will.

Question 14

What is required in order to revoke a will by destruction?

Answer 14

• An act of destruction (burning, tearing or otherwise destroying)* by the testator or by some person in his presence and by his direction * with the intention of revoking the sameIf only part of the will is destroyed, the destruction may result in the revocation of that part of the will only or a complete revocation, if a sufficiently substantial or vital part (e.g. the testator’s or witnesses’ signatures) was destroyed.| Wills Act 1837

Question 15

What is insufficient to revoke a will by destruction?

Answer 15

• Merely writing “cancelled” or “revoked” across the will * Putting a line through parts of it.

Question 16

When will partial destruction of a will be sufficient to revoke the whole will?

Answer 16

If a sufficiently substantial or vital part (e.g the testator’s or witnesses’ signatures) was destroyed.

Question 17

A asks B to destroy her will for her. B tears up A’s will at his office when A is at home. Is the revocation effective?

Answer 17

No, this attempted revocation would not be effective as the will was not destroyed in the presence of the testator. A would need to execute a document revoking the will.

Question 18

What presumption applies to a will that is found mutilated at the date of death?

Answer 18

It will be rebuttably presumed to have been done by the testator with the intention of revoking it.

Question 19

What presumption applies to a will last known to have been in the testator’s possession, but which cannot be found at the date of death?

Answer 19

A rebuttable presumption that it has been destroyed by the testator with the intention of revoking it.

Question 20

What is the dependant relative revocation doctrine and when does it apply?

Answer 20

The court may apply the doctrine to save a will. * This could occur when the testator’s intention to revoke their will was conditional upon a future event, such as the later execution of a new will. * If that event did not take place, the original will may be valid - even if it was destroyed - if it can be reconstructed from a copy or draft.

Question 21

What are mutual wills?

Answer 21

Wills made by two or more persons, usually with the same clauses and conferring reciprocal benefits, further to an agreement between them to make such wills and not to revoke them without the consent of the other. * There is a contract between the parties that the wills are to be irrevocable and will remain unaltered, which creates a constructive trust in favour of the beneficiaries. * This means that if one of the two testators dies and the other testator then changes their will, a beneficiary harmed by the change may apply to the court for an order to the recipient of the changed gift to transfer it to the person who would have been the beneficiary under the original will. Note that such wills are generally avoided by practitioners.

Question 22

A married couple, H and W execute mutual wills that give all of their property to each other, and then to their three children in equal shares. H dies first, and W receives all of his property. A few years after H’s death, W finds love again, and she changes her will to leave her entire estate to her new partner. When W dies, her three children discover that W broke the contractual agreement not to revoke or alter her original will. Is the new will enforceable?

Answer 22

No, the mutual wills created a constructive trust in favour of the will beneficiaries which prevents the unjust enrichment of one person at the expense of another as a result of wrongful conduct. W’s new partner will be considered a constructive trustee, and his only duty will be to convey the estate property to the individuals who should have received it– the three children