Wills and Intestacy - Revocation of Wills (6) Flashcards
How are wills revoked?
Revocation of Wills: A will may be wholly or partially revoked at any time prior to death.
(1) Capacity: If revocation is intentional, testator must have ‘soundness of mind, memory and understanding’ (Banks v Goodfellow).
(2) Effect: The validly revoked will or codicil is no longer valid on death, unless revived by a later codicil.
What happens if a later will or a codicil is made?
Later Wills and Codicils: A later will or codicil may wholly or partially revoke a former will or codicil (s20).
(1) Express: Generally, a will contains a revocation clause: ‘I revoke all former wills and codicils’.
>Use of the word ‘my last will’ is insufficient. There must be express revocation of former documents.
(2) Implied: In the absence of a clause, the later document implicitly revokes former iterations to the extent of any inconsistencies. This requires that the chronology of documents is obvious, i.e. by their dates.
Conditional Revocation
Conditional Revocation: If revocation was conditional upon some future event, such as the effectiveness of the new will (which was in fact invalid), the court may hold the revocation to be ineffective.
Writing
Writing: A will may be revoked by any writing, so long as it is intended, with capacity, and duly executed like a will.
How should a will be physically destroyed?
Physical Destruction: A will may be destroyed physically, with three elements (s20).
(1) Physical: The will must be physically destroyed by ‘burning, tearing or destroying’.
Symbolic: Symbolic acts, such as writing ‘destroyed’, are insufficient.
Partial Destruction: Destruction of part of a will may hold that part to be revoked, if ‘obliterated’.
Vital Part Destruction: If a vital part of the will is obliterated, such as signatures, the entire will may be revoked, provided the will is inoperable following obliteration.
(2) Testator or In Presence: The destruction must be by the testator, or by a third-party in the testator’s physical presence and direction. If by the testator himself, there are no witness requirements.
(3) Intention: The destruction must coincide with intention to revoke the will (Cheese v Lovejoy).
No Intention: If there is no intention, then the court will attempt reconstruction from a copy, draft or witness testimony (i.e. will was accidentally destroyed in a house fire).
(4) Mutilation: If a will is found to be mutilated on death, it is rebuttably presumed there was intent to revoke.
(5) Missing: If a will was last known to be in the testator’s possession but cannot be found on death, it is rebuttably presumed to have been intentionally revoked.
Conditional/Dependant Relative Revocation
Conditional Revocation: If revocation was conditional upon some future event (such as the effectiveness of a new will which was in fact invalid), the court may hold the revocation to be ineffective.
What happens to a will if the testator marries?
Marriage: Wills are automatically revoked upon marriage or civil partnership, with two exceptions (s18).
(1) Expectation Clause: If the will was created in anticipation of a tangible forthcoming marriage to a specific person, as expressed in an ‘expectation clause’, then the will is not revoked on that marriage (s18).
(2) Marriage Conversion: If a same-sex civil partnership is ‘converted’ to a marriage, a will is not revoked.
Effect of Divorce
Effect of Divorce: Divorces and annulments do not revoke wills, but any nomination of the former spouse as executor or beneficiary will fail, and any gift or appointment will not take effect. The former spouse will be treated as predeceased.
Exception: This will not occur if there is express contrary intention in the will.
What is the doctrine of mutual wills?
Doctrine of Mutual Wills: A husband and wife can agree to create irrevocable interests for ascertainable beneficiaries on death in ‘mutual wills’. The wills have clauses conferring reciprocal benefits, further to an agreement to make the wills and not revoke them without consent of the other.
(1) Procedure: On the death of the first person, the second person holds the property of the first. On the death of the second, the property of both parties passes to the beneficiaries named in the mutual wills.
(2) Effect: If the survivor alters his will after the death of the first, it is held that the inherited property is held on constructive trust, and the intended beneficiary can apply to court to transfer the property to them.
(3) Revocation: Both parties may revoke before either has died, either by agreement or unilateral notice.
