Wills: Amendment and Revocation Flashcards
What are the 3 ways a testator can make alterations to a will?
- Make entirely new will
- Make codicil to existing will
- Make manuscript amendments to original will
Will alterations made to a will by another person be valid?
Only if intended by testator and made in their presence and at their direction
What is the difference between an obliteration and interlineation?
- Obliteration = text has been crossd out in such a way that original text is illegible
- Interlineation = writing inserted between existing lines of document (add something previously omitted)
What is the general rule on amendments made after the will is executed? What is the effect?
Are invalid and unenforceable; original wording is given effect to and alteration has no effect
Alterations made prior to execution form part of will and enforceable
What is the rebuttable presumption as to when an alteration was made?
That alteration was made after execution (so invalid)
The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution (confirming when the alteration was made) although this would require the witnesses to accurately recall what the will looked like at execution.
When will alterations to a will after execution be valid?
I.e. presumption rebutted
If executed like a will (signed by testator and 2 witnesses in accordance with s9)
I.e. attested alterations
Must the witnesses for an attested alteration be the original 2 that witnessed the will?
No!
Will attested alterations only be necessary for those made after the will is executed?
I.e. not for before execution where they would be valid anyway
Should always be executed in same way as will whether before or after - saves requirement to prove when alterations were made (avoids unecessary dispute)
What are the two ways a testator can confirm manuscript amendments that were not specifically attested?
By:
1. Re-executing the amended will as a whole
2. Executing a subsequent codicil that affirms the will it amends
Must reference alteration!
Either way - express reference to the manuscript amendments is required to ensure the presumption that the alterations were made after execution is rebutted.
What are the 2 exceptions to the general rule that unattested alterations are invalid (as they are presumed to have been made after execution)?
Other than attested alterations
- Blank space has been completed (presumption this occurred before execution) e.g. I give to my wife Kelli the sum of £[]
- If original wording is not apparent (obliterated, covered over or cut out); obliteration treated as having been made by testator with intention to revoke and alteration effective
When can extrinsic evidence be used to establish original gift/infra-red technology permitted?
Where testator did not intend to revoke gift or TP made amendment
What does ‘conditional intent’ mean in conditional revocation?
Where testator has…
1. Attempted to substitute something for original wording; and
2. Attempt has failed (so original gift operates)
Fresh copy of will containing original wording admittted to probate
What is the effect of a conditional revocation?
Extrinsic evidence will be permitted to show original wording which will take effect if revocation fails (as the court finds that testator only intended to revoke original gift if the amendment was successful)
I.e. if alteration does not work, can fall back on original gift!
When are manuscript amendments appropriate?
Where:
- Amendments have no impact on interpretation/meaning of will (e.g. correction of a typo, change of a B’s address)
- Changes must be made urgently and new codicil/will cannot be prepared (e.g. testator requires urgent hospital treatment)
But should always be advised to make new will
If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant
What alterations will and will not be given effect to?
Will be given effect to:
- Made before execution of will
- Obliterations with intent to revoke
- Attested alterations
- Completion of a blank space (completed before execution)
- Subsequently confimed by re-execution or codicil which references alteration
Will not be given effect to:
- Made after execution of will/codicil
- Obliterations w/o intent to revoke
- Obliterations by TPs
- Obliterations as conditional revocation (provied extrinsic eidence of original gift can be found)
- Unattested alterations
What is a codicil and how is it read alongside a will?
- Document amending earlier will rather than replacing it
- Both documents remain active and intended to be read together (instructions in the original will, as amended by any codicils, are given effect to)
What are the requirements of a valid codicil?
- Same as a will (test cap, know+app, s9)
- Drafted with reference to the will it amends
When will codicils be appropriate?
- Create new provisions in a will e.g. add legacy for new B
- Edit existing provisions in a will e.g. change value of pecuniary legacy
- Revoke provisions in a will e.g. remove particular B’s entitlement
If wanting to make multiple changes - should execute new will instead
How many codicils can a person legally make?
No limit - but should limit number to avoid confusion
What are some issues that can occur when drafting codicils?
- Not expressly noting change to testator’s name/address
- Not affirming unchanged parts of original will
- Missing/incorrect cross reference to date of original wil/earlier codicil
- Effect of codicil does not make sense when read in conjunction with will/earlier codicil
- Incorrect references to clause numbering
What should codicil expressly state the extent of for the avoidance of doubt?
The extent to which testator confirms or revokes earlier will (and previous codicils)
If there is no express words of revocation re earlier will in codicil, what is the (rebuttable) presumption?
Terms of original will remain where possible and codicil only revokes earlier will to the extent there is inconsistency between them
How can discrepancies regarding the date of the will/number of codicils be explained?
By provision of affidavit evidence
What is the effect on the will/earlier codicil(s) when a testator executes a codicil?
Execution republishes the will to which it expressly refers; will given effect to as if it had been executed on date on which codicil was executed
How does the ‘republishing of a will’ from execution of a codicil affect construction?
Whether or not they are amended by a later codicil, the date of the codicil is used
What happens if the later will does not contain an express revocation clause?
Implied revocation by will
The combined effect of new and old will is followed, but later will impliedly revokes the earlier to the extent they are inconsistent (later will is given priority)
How can a testator avoid the effect of marriage on a will when they are drafting their will?
I.e. draft a will and then not get it revoked by marrying
Draft will in contemplation of marriage - will must:
- Name future spouse/CP
- Identify intended ceremony
- Expressly state whether testator intends will to be revoked on event of marriage/CP
E.g. at the time of making this will I expect to enter into a civil partnership with () and intend that this my will shall not be revoked by my civil partnership with () = effective
If instructions re what happens if the ceremony does not take place (for will drafted in contemplation of marriage) are not included, does the will take effect?
The will takes effect even if the ceremony does not
Should expressly state intention if do not want this to happen
If the former spouse was the sole executor of the will?
A statutory order is followed and administrator appointed in absence of any executor who can act
If more than 1 executor in will = remainer can be appointed (see image)
