Wills: Amendment and Revocation

Question 1

What are the options to amend a will?

Answer 1

• Manuscript amends to original
• Make codicil to existing will
• Revoke existing will

Question 2

What are the types of manuscript amends?

Answer 2

• Obliteration: text crossed out so is illegible
• Interlineation: writing inserted between existing lines
• Other alterations: additions to end, strike through of legible text

Question 3

What is the general rule for manuscript amends?

Answer 3

amends made after execution are invalid and unenforceable

Question 4

What is the presumption involved regarding the timing of manuscript alterations?

Answer 4

Rebuttable presumption that alteration made after execution

Question 5

What is the rule for attested alterations?

Answer 5

If executed like a will (signed by testator and two witnesses) then valid

Question 6

What are the exceptions to the general rule that unattested alterations are invalid?

Answer 6

• 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

Question 7

Does a codicil have the same execution requirements as a will?

Answer 7

Yes

Question 8

What can a codicil do?

Answer 8

• Create new provisions
• Edit existing provisions
• Revoke provisions

Question 9

What does it mean that a codicil republishes the will?

Answer 9

will given effect as if it had been executed on the date codicil was executed

Question 10

Can a codicil revive a previously revoked will?

Answer 10

Yes

Question 11

How may a Will be revoked?

Answer 11

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

Question 12

What are the requirements for revoking a will by destruction?

Answer 12

a) Burning, tearing or otherwise destroying
b) Provided there is intention to revoke the Will

Question 13

Is writing ‘revoked’ on a will effective to revoke it?

Answer 13

No - must be a physical act of destruction

Question 14

What are the types of intention to revoke a will?

Answer 14

• absolute
• conditional

Question 15

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?

Answer 15

No

Question 16

Can a copy will be destroyed to revoke the will?

Answer 16

No must be original

Question 17

Can another person revoke the will by destroying it?

Answer 17

Only at testator’s direction

Question 18

Will destruction of part of a will revoke the will?

Answer 18

If Will can operate without destroyed parts = partial revocation
If will cannot operate = whole revocation

Question 19

When is a will presumed to have been destroyed with intention (unless evidence shows otherwise)?

Answer 19

• missing
• damaged

Question 20

What will the administrators have to show to rebut a presumption of revocation where the will is missing or damaged?

Answer 20

• valid will existed when they died but lost/damaged after death
• didnt intend to revoke
• didnt carry out/give instruction for destruction

Question 21

What happens where there is a later will made but does not expressly revoke previous wills?

Answer 21

Combined effect followed but to the extent that they are inconsistent, the later will impliedly revoked the earlier

Question 22

What is a mutual will?

Answer 22

Where on testator agrees with another to make a will on agreed terms

Question 23

What may happen where a testor attempts to amend/revoke a mutual will?

Answer 23

equity may impose a constructive trust over their property on terms previously agreed and limit effect of new will

Question 24

Are testators of mirror wills bound not to revoke their wills?

Answer 24

No

Question 25

What is the effect of marriage on a will?

Answer 25

automatically revokes any will made prior to marriage

Question 26

What are the requirements for a will in contemplation of marriage?

Answer 26

• Must name future spouse
• Identify intended ceremony
• Express wording confirming they don’t want will to be revoked

Question 27

What is the effect of divorce on a will?

Answer 27

Will takes effect as if the former spouse had died at date of court order (unless will expressly states otherwise)