Wills and Estate Administration - Alteration, Amendment and Revocation of Wills

Question 1

Valid Alterations

Answer 1

• Alteration made before will was executed or executed like a will (e.g. alteration made in the presence of witnesses, testator and witnesses sign/initial next to alteration)
• Will reads naturally after alteration

Question 2

Unattested Alterations

Answer 2

• Not signed or initialled
• Unattested alterations presumed to have been made after execution unless filling in a blank space

Question 3

Invalid Alterations

Answer 3

• Original wording will stand if they are apparent (e.g. alteration made using a thin pen and so easy to see the original wording) - admitted to probate with original wording
• If original wording not apparent the court will admit the will to probate with a blank space where the words are obliterated provided it makes sense to do so

Question 4

Codicil

Answer 4

• Document that adds to, amends, or partially revokes existing will
• Must refer to the will and be validly executed like a will:

1. In writing
2. Signed by testator
3. Witnessed by at least two people
4. Those people must sign in presence of testator

• Should include a clause confirming the unamended part of the will
• May remedy a gift which was void because the beneficiary witnessed the will

Question 5

Will Revocation

Answer 5

• Once revoked it is no longer valid
• Can occur because a new will has been executed or because circumstances have changed

Question 6

Marriage

Answer 6

• Automatically revokes a will
• Exception: if the testator was expecting to marry a specific person and they intended that **all or part **of the will should not be revoked by that marriage (intention will be shown by a clause in the will)

Question 7

Divorce or Dissolution

Answer 7

Does not automatically revoke an entire will

Law treats the former spouse as having died:

• Any gifts to the former spouse are revoked and property will not pass to them
• Former spouse’s appointment as executor or trustee ineffective

Any provision in the will that does not involve former spouse remains valid

Subject to any contrary intention in the will (i.e. testator can include provision in the will that gifts will pass to a former spouse)

Question 8

Testator’s Act

Answer 8

A later will revokes an earlier will to extent that later will is inconsistent with earlier will

Destruction:

• Burning, tearing or otherwise destroying will
• Intention to destroy the will
• Testator must have the intention at the time of destruction
• If will found mutilated at time of death it is presumed that the testator mutilated the will with the intention to revoke it

Act of destruction:

• Writing cancelled or revoked, for example, not enough
• Destruction of part of a will may only revoke that part or be a complete revocation if a substantial or vital part
• If done by someone else the act must be done in the testator’s presence and by their direction

Intention to revoke:

• Must be present at the time of the will’s destruction
• Requires the same mental capacity as for making a will
• If a will is found mutilated at the date of death there is a rebuttable presumption that this was done by the testator with the intention of revoking it
• A will last known to have been in the testator’s possession but which cannot be found at the date of death is presumed to have been destroyed by the testator with the intention of revoking it

Question 9

Mutual Wills

Answer 9

• Made by spouses, usually with the same clauses and conferring reciprocal benefits
• Contract to make identical wills and to not revoke them without the consent of the other
• Creates a constructive trust in favour of beneficiaries and will normally be referred to in the wills themselves
• A constructive trust is an equitable remedy imposed by a court to prevent the unjust enrichment of one person at the expense of another as a result of wrongful conduct
• Rare today and generally avoided by practitioners

Question 10

Dependant Relative Revocation

Answer 10

• Testator’s intention to revoke their will conditional upon a future event (e.g. execution of a new will)
• If that event did not take place the original will may be valid if it can be reconstructed from a copy or draft