Wills: Amendment and Revocation Flashcards
What are the options to amend a will?
- Manuscript amends to original
- Make codicil to existing will
- Revoke existing will
What are the types of manuscript amends?
- Obliteration: text crossed out so is illegible
- Interlineation: writing inserted between existing lines
- Other alterations: additions to end, strike through of legible text
What is the general rule for manuscript amends?
amends made after execution are invalid and unenforceable
What is the presumption involved regarding the timing of manuscript alterations?
Rebuttable presumption that alteration made after execution
What is the rule for attested alterations?
If executed like a will (signed by testator and two witnesses) then valid
What are the exceptions to the general rule that unattested alterations are invalid?
- Blank space – where completed, presumption occurred before execution
- Obliteration – if original wording not apparent, treated as made by testator with intention to revoke and is effective
- Conditional revocation – court can find that testator only intended to revoke the original gift if substitution was successful unless made after execution and not validly executed
Does a codicil have the same execution requirements as a will?
Yes
What can a codicil do?
- Create new provisions
- Edit existing provisions
- Revoke provisions
What does it mean that a codicil republishes the will?
will given effect as if it had been executed on the date codicil was executed
Can a codicil revive a previously revoked will?
Yes
How may a Will be revoked?
- Destruction
- Revocation by later Will
- Revocation by later codicil
- Testator’s subsequent marriage
- Testator’s divorce
- An effective alteration
What are the requirements for revoking a will by destruction?
a) Burning, tearing or otherwise destroying
b) Provided there is intention to revoke the Will
Is writing ‘revoked’ on a will effective to revoke it?
No - must be a physical act of destruction
What are the types of intention to revoke a will?
- absolute
- conditional
If a testator amends a will to substitute a legacy for an existing beneficiary but the amednment is not valid, will the original gift be revoked?
No
Can a copy will be destroyed to revoke the will?
No must be original
Can another person revoke the will by destroying it?
Only at testator’s direction
Will destruction of part of a will revoke the will?
If Will can operate without destroyed parts = partial revocation
If will cannot operate = whole revocation
When is a will presumed to have been destroyed with intention (unless evidence shows otherwise)?
- missing
- damaged
What will the administrators have to show to rebut a presumption of revocation where the will is missing or damaged?
- valid will existed when they died but lost/damaged after death
- didnt intend to revoke
- didnt carry out/give instruction for destruction
What happens where there is a later will made but does not expressly revoke previous wills?
Combined effect followed but to the extent that they are inconsistent, the later will impliedly revoked the earlier
What is a mutual will?
Where on testator agrees with another to make a will on agreed terms
What may happen where a testor attempts to amend/revoke a mutual will?
equity may impose a constructive trust over their property on terms previously agreed and limit effect of new will
Are testators of mirror wills bound not to revoke their wills?
No
What is the effect of marriage on a will?
automatically revokes any will made prior to marriage
What are the requirements for a will in contemplation of marriage?
- Must name future spouse
- Identify intended ceremony
- Express wording confirming they don’t want will to be revoked
What is the effect of divorce on a will?
Will takes effect as if the former spouse had died at date of court order (unless will expressly states otherwise)
