Wills: Revocation, Additions and Alterations

Question 1

What is revocation?

Answer 1

The formal act of cancelling or withdrawing a will.

Question 2

What is the effect of revocation?

Answer 2

Revocation nullifies the will either as a whole or in part.

Question 3

What are the three situations in which a will can be revoked?

Answer 3

By a later will or codicil;

By destruction; or

By marriage/ forming a civil partnership.

Question 4

How can a will be revoked by a later will or codicil?

Answer 4

Under s.20 Wills Act 1837 a will may be revoked in whole or in part by a declaration to that
effect in a later will or codicil.

Question 5

Can a will still be revoked if a later will or codicil does not include an express revocation clause?

Answer 5

If a will does not contain an express revocation clause, it operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent.

Question 6

What is the doctrine of conditional revocation?

Answer 6

The court may construe a testator’s intention to revoke an earlier will by an express revocation clause as being conditional upon a particular event (such as the effectiveness of the new will).

If that condition is not satisfied, the revocation may be held to be invalid so that the earlier will remains effective.

Question 7

How may a will be revoked by destruction?

Answer 7

A will may be revoked by burning, tearing or otherwise physically destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

Question 8

What happens where a will has been destroyed, but not successfully revoked?

Answer 8

The court will look at evidence to establish the contents of the will such as a copy of the original will or oral evidence from those involved in drawing up the will.

Question 9

What if the testator’s intention to revoke their will by destruction was conditional upon some future event that did not occur?

Answer 9

The court may apply the doctrine of conditional revocation to save a will and the contents of the original will may be reconstructed from a copy or draft.

Question 10

How may a will be revoked by marriage or formation of a civil partnership?

Answer 10

If the testator marries or forms a civil partnership after executing a will, the will is automatically revoked.

Question 11

What is the exception to the rule that marriage or civil partnership revokes an earlier will?

Answer 11

Where it appears from the will that the testator makes the will prior to and in expectation of a forthcoming marriage or civil partnership with a particular person and that the testator does not intend the will to be revoked.

Question 12

What happens to a will made in contemplation of a marriage of the intended marriage never takes place?

Answer 12

It is still effective, unless the will is expressed as being conditional on the marriage taking place.

Question 13

What happens to a will where a civil partnership is converted to a marriage?

Answer 13

The conversion will not revoke an existing will of either party nor affect any dispositions in the wills.

Question 14

What must the testator have to revoke a will?

Answer 14

Capacity.

Question 15

What happens if a testator breaches a promise not to revoke their will or not to revoke
a particular gift in the will?

Answer 15

If the agreement amounts to a contract and the
testator is in breach, this may give rise to a contractual remedy which may result in the estate
paying contractual damages to a disappointed beneficiary.

Question 16

What are mutual wills?

Answer 16

Mutual wills arise where two people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.

Question 17

What is the effect of the doctrine of mutual wills?

Answer 17

A constructive trust is imposed on the promisor’s estate in favour of any beneficiaries under the original mutual will.

AND

The survivor is not permitted to make dispositions during their lifetime with the intention of
defeating the agreement in the mutual wills.

Question 18

What are the requirements for the doctrine of mutual wills to apply?

Answer 18

The wills must have been made as the result of a clear agreement between the testators as to the
disposal of their estates and part of that agreement is that the survivor will not revoke their
will (or, less commonly, that they will leave their estate in a particular way).

Question 19

When does the constructive trust arise under the doctrine of mutual wills?

Answer 19

When the first testator dies without having revoked their will.

Question 20

What is a codicil?

Answer 20

A codicil is a document, executed in the same way as a will, which supplements an existing will.

Question 21

What is the purpose of using a codicil?

Answer 21

A codicil can be used to amend, add to or revoke in part, an existing will.

Question 22

What is the effect of a properly executed codicil?

Answer 22

A properly executed codicil has the effect of republishing the existing will.

Republication confirms the will and causes the will to take effect as if made at the same time as the codicil, but incorporating any changes made by the codicil.

Question 23

Can a codicil revive a revoked will?

Answer 23

Yes, the effect of revival is to resurrect the revoked will which then takes effect as if made at the time that it was revived.

Question 24

What are the requirements for a codicil to revive a revoked will?

Answer 24

the codicil must in some way evidence the testator’s
intention to revive the will.

A mere reference to the will does not suffice.

Question 25

When will alterations made after the will was executed be valid?

Answer 25

If those alterations were themselves executed like a will.

However, the initials of the testator and the witnesses in the margin next to the amendment will suffice.

Question 26

What happens if there is an invalid alteration?

Answer 26

The original wording of the will stands provided that it is optically apparent or capable of being read on the face of the will by ordinary means.

Question 27

What is the exception to the requirement that to be valid an alteration must be executed?

Answer 27

When the testator makes an amendment which simply obliterates the original wording with the intention to revoke.

Question 28

When will the conditional revocation rule be applied for obliterated wording?

Answer 28

Where the court finds that the testator only intended to revoke the original words on condition that the substitute words were effective.