Wills: Amendment and Revocation

Question 1

Options available 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 is the best method of amendments?

Answer 2

• best to advise the testator to make a new will
• costs of making a new will are minimal compared to the costs incurred later because of a poorly drafted codicil or because of unclear or ineffective

Question 3

s 21 Wills Act 1837

Answer 3

Section which governs manuscript alterations to a will:

“No obliteration, interlineation, or other alteration made after the execution shall be valid or have any effect except so far as the words before such alteration shall not be apparent, unless the alteration shall be executed in like manner as required for the execution of a will”

Question 4

What is obliteration?

Answer 4

Where the text has been crossed out in such a way that the original text is illegible.

Question 5

What is interlineation?

Answer 5

Where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.

Question 6

Other alterations

Answer 6

includes:

• additions added to the end of the will
• strike through of text which is still legible.

Question 7

Post-execution alterations

Answer 7

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

Note: there is a rebuttable presumption that an alteration was made after execution.
- can rebut with affidavit evidence of the state and condition of the will at the time of execution.

Question 8

Attested alterations

Answer 8

An exception to the general rule is that if an alteration is executed like a will (signed by the testator and two witnesses in accordance with s9 WA) alongside the alteration it is valid.

• initials are sufficient
• can be different witnesses than the ones who witnesses the will

Removes the need to prove when the alterations were made.

Can also:
- re-execute the amended will as a whole
- executing a subsequent codicil that affirms the will it amends

Question 9

Exception to the rule on alterations

Answer 9

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

e.g.
I GIVE to my wife the sum of £[ ]
(amount written in)

Can be rebutted by internal evidence in the will or by external evidence.

Question 10

Rules on obliteration

Answer 10

If the original word is not apparent because it has been obliterated, covered over or cutout, the obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective.

Question 11

Meaning of word ‘apparent’

Answer 11

In this context apparent means the original wording can be deciphered by natural means - reading it or holding it to light but NOT infrared tech - and without the need for external evidence.

Question 12

Obliteration with conditional intention to revoke

Answer 12

If there was conditional intention to revoke (eg substitute another figure but this has failed) then extrinsic evidence is permitted to show the original wording (fresh copy of the will).

This is because the court can take the view that the testator only intended to revoke the original gift if the substitution was successful.

Question 13

When are manuscript alterations appropriate?

Answer 13

• amendments have no impact on the interpretation or meaning of the will. This could include correction of a typo, change to a beneficiary’s address or correction to the spelling of a name.
• The 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.

Question 14

Alterations given effect to

Answer 14

• made before execution (need affidavit to prove)
• obliterations with intention to revoke
• attested alterations
• completion of a blank space (presumed to have been completed before execution)
• subsequently confirmed by re-execution or codicil

Question 15

Alterations not given effect to

Answer 15

• made after execution of the will/codicil
• obliterations without intent to revoke
• obliterations by third parties
• obliterations as conditional revocation (provided evidence of original gift exists)
• unattested alterations (presumed to have been made after execution)

Question 16

What is a codicil?

Answer 16

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

The rules relating to the validity of a will also apply to a codicil. Need:
- testamentary capacity
- knowledge and approval
- comply with s9 Wills Act 1837

Must draft carefully with reference to to original will it amends!

Question 17

When are codicils appropriate?

Answer 17

• create new provisions in a will (add a legacy)
• edit existing provisions in a will (change an amount)
• revoke provisions in a will (remove a beneficiary’s entitlement)

If making multiple or significant changes to the will it is advisable to execute a new will rather than make a codicil to remove the risk of inconsistency

Question 18

What should be included in a codicil?

Answer 18

• A properly drafted codicil should not give rise to any inconsistency or ambiguity when read together with the will
• For the avoidance of doubt the codicil should expressly state the extent to which the testator confirms or revokes their earlier will (and any previous codicils)
• If there are no express words of revocation there is a rebuttable presumption that the terms of the original will remain where possible and the codicil will only revoke an earlier will to the extent there is inconsistency between them
• any inconsistencies regarding dates or number of codicils can be explained with affidavits

Question 19

Common drafting errors of codicils

Answer 19

• 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 that refers only to the original will and not the previous codicil

-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 reference to clause numbering

Question 20

“republishing the will”

Answer 20

Execution of the codicil republishes the will. This means the will is given effect as if it had been executed on the date on which the codicil was executed.

Rule of construction will apply to the date the codicil was executed.

Can also be used to correct mistakes e.g. s15 beneficiaries - witnesses are the ones on the codicil

If the will was not correctly the executed the codicil can will validate the original will (so long as this is properly executed).

Question 21

Using a codicil to confirm manuscript alterations

Answer 21

If the will contains unattested alterations a codicil can confirm them.

The codicil must expressly refer to the alterations it confirms.

Question 22

Revival of a will

Answer 22

A codicil can revive a will that was revoked previously if this was the testator’s intention. (e.g. a will that was revoked by marriage)

But it is preferable to make a new will! This can be confusing especially if other documents were made in the interim. Also if it was destroyed it cannot be revived.

Question 23

Revocation by destruction

Answer 23

‘burning, tearing or otherwise destroying’ (physical act) and an intention to revoke the will.

One without the other is ineffective. Need same capacity to revoke as to make a valid will.

If destroyed without an intention (affidavit evidence would be required and a copy of the will would be admitted).

Question 24

Would destroying a copy revoke a will?

Answer 24

No the original must be destroyed.

Question 25

What if someone else destroys the will?

Answer 25

The revocation will only be effective if it is at the direction of the testator.

Question 26

What if not all parts of the will are destroyed?

Answer 26

It depends on the parts that remain.

Will only be a partial revocation if the will can operate effectively with the sections that remain.

Question 27

What if a will is missing?

Answer 27

There will be a presumption that the testator destroyed their will with an intention to revoke it unless evidence is presented to suggest otherwise.

Question 28

What if the will is damaged?

Answer 28

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

Question 29

Who has the burden of rebutting a presumption of revocation?

Answer 29

Those administering the estate. They must show:

• a vlid will existed when the deceased died but was lost/damaged after death
• the deceased did not carry out or give instruction for the act of destruction
• the deceased did not carry out or give instruction for the act of destruction

Question 30

Express revocation

Answer 30

” I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”

Question 31

Implied revocation

Answer 31

This may occur when a new will is made but there is not a revocation clause in the new will.

In this case the combined effect is followed to the extent they are inconsistent in which case the later will revokes the earlier will.

Question 32

Mutual will

Answer 32

Parties agree to make wills on terms agreed between them. Both also agree that neither will amend their will without the consent of the other. If the testator attempts to revoke their will equity will impose a constructive trust over that testator’s property.

These are not common.

Question 33

Mirror wills

Answer 33

Mirror wills are common and are the wills of a couple which mirror each other.

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

Question 34

Conditional revocation

Answer 34

A revocation can be conditional (eg getting divorced) in which case the revocation will not be effective until the condition is satisfied.

Question 35

s 18 Wills Act 1837

Answer 35

When a person marries this automatically revokes in full any will (and codicil) made prior to the marriage.

Therefore when meeting a client it is important to ask whether or not they plan to get married in the future.

Question 36

Wills in contemplation of marriage

Answer 36

You can draft a will in contemplation of marriage.

The will must name the future spouse or civil partner 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.

Not possible to make one for a:
- hypothetical marriage
- a marriage to one person but then marry someone else

Should also take instruction for if the ceremony does not take place - such a separation or death.

Question 37

Revocation by divorce

Answer 37

The will takes effect after divorce as if the former spouse had died on the date of the divorce unless the will expressly states otherwise.

this means any appointment will not be effective and any gift will fail.