Wills: Revocation, Additions And Alterations Flashcards
What is revocation
Revocation is the formal act of cancelling or withdrawing a will.
What is the effect of revocation
Nullify the will, either as whole or part
What are the 3 situations where a will can be revoked?
By a later will or codicil
By destruction
By marriage/forming a civil partnership
How is a will revoked by a later will or codicil?
S 20 wills act.
Will may be revoked in whole or part, by a declaration to that effect in a later wll or codicil.
No particular working is required, but a professioanl drafted will usually starts with ;in hereby revoke”.
If a will does NOT contain an express revocation clause, it operates to revoke any earlier will or codicil by IMPLICATION, if they are inconsistent. (Or partial revocation)
How do you revoke a will be destruction?
S 20 Wills Act
May be revoked by “burning, yearning, or otherwise destroying the same by the testator or by someone in his presence and by his directs with intention of revoking the same”
Must be carried out by testator themselves or someone by direction. Must be in absence of testator.
Is symbolic destruction allowed for revocation of will?
NO. Simply crossing out wording or writing revoked, is NOT sufficient.
Although ,if a vital part is destroyed - like a signature, then the partial destruction make revoke only that part which was actually destroyed.
What must the act of destruction carry with it?
It MUST carry the INTENTION to revoke. A will destroyed by accident is not revoked.
How doe marriage or civil partnership revoke a will?
If testator marries or forms, the will is revoked.
S 18A - 18C Wills Act
This is automatic.
When does marriage NOT revoke a will?
If it appears from the will that the testator makes the will PRIOR and in EXPECTATION of a forthcoming marriage with a PARTICULAR PERSON, and that testator does not intend it to be revoked.
Also, if testator marries and then codicil of the original will, the original wll is then not destroyed.
Or, the testator must intend that the will is not to be revoked by marriage.
What are mutual wills
Arise when 2 people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.
If one dies before, and the other changes it, then equity will step in and impose a constructive trust over the surviving persons estate, in favour of the original mutual will.
What are codicils?
Rather than revoking, the testator may want to amend or add to the wills.
It is a document, executed in same as will. Can be used eto amend, add to revoke parts of an existing will.
If the testator makes codicils, when is the will deemed to hae been made?
Under s 34, deemed to have been made at the time of REPUBLICATION.
Can a codicil revive a will which has been revoked?
Yes. S 22 provides that a revoked will can be REVIVED by the re-execution therefore or by codicil executed in manner showing intention to revive.
When are alterations to the will valid?
If made before execution, they are valid.
If made after, they must be executed LIKE a will - initials of testator and witness in margin next to amendment will suffice. If alterations is valid, then must be read to take in account.
What happens if an alteration is invalid?
The original wording of the will stands provided that it can be deciphered.
The original wording must be capable of being read on the face of the actual will.
What is the exception to the requirement that to be valid an alteration must be executed?
When the testator makes an amendment which simply obliterates the original worlding.
There is a revocation of the original wording by destruction, provided it is intention to revoke as well.
The will itself remains valid, but takes effect WITHOUT the obliterated words.
What is the doctrine of dependent relative revocation?
The testators intention to revoke their will by destruction was conditional upon a FUTURE EVENT.
If that event did not in fact happen, then the original will may be valid, even though it was destroyed.
What is the doctrine of mutual wills?
Where 2 or more people make wills in similar terms, and agree that whichever of them survives, will irrevocably leave their estate in a certain way
What happens if the wife is the first to die in a mutual wills situation?
If the husband revoked the mutual will and made a new one, this is a valid testamentary act.
HOWEVER, because the wife had fulfilled her side of the bargain, the husband cannot go back on his word.
Equity steps in, in doctrine of minimal wills.
It imposes a constructive trust over the husband estate in favour of the wife’s issues, as the beneficiary under the original mutual will.
This means a future wills will be invalidated.
What is s 34 of the WIlls Act
A republished will is deemed to have been made AT THE TIME OF REPUBLICATION
What does s 22 of the wills act state?
A codicil can be used to revive a will which has PREVIOUSLY been revoked.
This resurrects the old will, and it takes effect as if made at that time.
What is s 21 of the Wills Act
Alterations made after the will was executed can be valid if those alterations were themselves executed like a will
What is an exception to the requirement of valid codicil alterations?
When the testator makes an amendment which simply OBLITERATES the original wording.
Provided the act of destruction was accompanied with the intention to revoke.
The will ITSELF is valid, but that gift is destructed and nothing is left.
This is called an obliterations
What is an obliteration ?
When the original wording in a will is wholly unreadable.
This is treated as revoking the original GIFT>
