Wills: amendment and revocation Flashcards
What does S21 Wills Act 1837 provide for in respect to alterations by hand?
“No obliteration, interlineation, or any 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”.
What is an obliteration?
Where the text has been crossed out in such a way that the original text is illegible.
What is an interlineation?
Where writing has been inserted between the existing lines of the document, often to add something previously omitted.
Will an alteration made before execution with testator’s knowledge and approval be valid?
Yes, this will be valid however there is a rebuttable presumption that an alteration was made after execution, which would render the alteration invalid: Cooper v Bockett (1846).
Will an attested alteration be valid?
Yes, if an alteration is executed like a will (signed by the testator and two witnesses in accordance with s9 WA 1837) alongside the alteration it is valid.
What alterations will be given effect to?
-Made before execution of the will/codicil
-Obliterations with intent to revoke
-Attested alterations
-Completion of a blank space
-Subsequently confirmed by re-execution or codicil, with reference to the alteration
What alterations will not be given effect to?
-Made after execution of the will/codicil
-Obliterations without intent to revoke
-Obliterations by 3rd parties
-Obliterations as conditional revocation
-Unattested alterations
What is a codicil?
A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active are intended to be read together.
What are the requirements of a valid codicil?
To make a valid codicil, a testator must have testamentary capacity, knowledge and approval and comply with S9 Wills Act 1837.
What is the effect of executing a codicil?
Executing a codicil acts to ‘republish’ the will to which it expressly refers. The will is given effect to as if it had been executed on the date which the codicil was executed.
How can a codicil avoid the effect of S15 Wills Act 1837?
If a beneficiary (or their spouse) witnesses a will, S15 Wills Act 1837 has the effect of denying the beneficiary their inheritance.
However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to and the effect of S15 WA 1837 avoided.
How can a will be revoked by destruction under S20 Wills Act 1837?
By S20 Wills Act 1837 a will may be revoked by the testator:
-burning, tearing or otherwise destroying it
-provided there is also an intention to revoke the will
Both elements must be present. The testator requires the same testamentary capacity to revoke a will as to make a valid will.
A physical act of destruction is needed; writing ‘revoked’ on the will would be ineffective-the original will must be destroyed rather than a copy.
What is the presumption regarding missing wills?
The testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise.
What is the presumption regarding damaged wills?
The testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise.
What is the effect if a later will does not contain an express revocation clause?
The combined effect is followed but to the extent they are inconsistent, the later will is given priority and impliedly revokes the earlier will.
