Wills and Intestacy - Codicils and Alterations (5) Flashcards
How can a will be changed?
Instead of expressly revoking a will, it is possible to amend them by codicil or physical alteration.
What is a codicil?
Codicil: A codicil is a testamentary document that supplements and amends an existing will.
(1) Formalities: Codicils are drafted and executed in the same manner as a will.
>This means there must be capacity, intention, and due execution.
>It must also reference the original will, outlining amendments and confirming any unamended remainder.
(2) Republication: Codicils will republish an existing will (s34).
>This means anything that ‘speaks from execution’ in the original will now speaks from execution of the codicil.
>I.e. ‘My car’ in a 2000 will now refers to the car owned at the time of publishing the codicil.
(3) Revival: Codicils also revive former wills or codicils referred to, unless express contrary intention is shown (s22).
>This means an invalid or revoked will is valid again, and also republished.
>I.e. If the codicil refers to ‘my 2000 will’, which had been revoked, it validates it again.
How are wills altered?
Alteration: Testators can physically alter their will to effect change (this is inherently risky).
(1) Pre-Execution: A will can be altered pre-execution simply by altering the face of the will (s21).
(2) Post-Execution: A will can be altered post-execution, but the alteration must be formally executed, meaning signed and attested next to the alteration (s21).
(3) Presumption: Where unclear, it is presumed that any alteration was made after execution, and therefore requires formalities to have been observed.
What are invalid alterations?
Invalid Alterations: If an alteration is invalid, then the effect will differ.
(1) Apparent Original Wording: If the original wording remains apparent, then it remains effective.
Determination: Use of a magnifying glass or enhanced lighting is permitted to determine the wording, but not more complex methods such as digital scanning or chemical testing.
(2) Illegible Original Wording: If the original wording is completely illegible, it is deemed obliterated. It is presumed that there was intention to revoke, and is therefore invalid. The remainder of the will remains valid.
Conditional Revocation: The doctrine of conditional revocation applies, meaning that if it appears revocation was conditional on the alteration being valid, and it was not, then the court may look at copies of the will to determine and admit the original wording to probate.
