WAE - Wills Amendment

How can wills be revoked?

- Destruction

- Revocation by a later will

- Revocation by later codicil

- Testator's subsequent marriage

- Testator's divorce

- An effective alteration (eg obliterating a clause)

How can a will be revoked by destruction?

1. by burning, tearing or otherwise destroying

2. by the testator or by some person in his presence at his direction

3. along with testator's simultaneous intention to revoke the will

4. must be the original, rather than a copy

Does the will need to be totally destroyed in order to be revoked?

No

- some act of destruction eg tearing in half is enough

- does not need to be shredded/destroyed

Is revocation of part of the will by destroying that part possible?

- yes, if the will can operate effectively with the sections that remain, those parts will still be valid

- iff the parts that remain are not sufficient for the will to operate then the whole will would effectively be revoked.

Would writing 'revoked' on the will be effective at revocation?

No

What level of capacity is needed to revoke a will?

same as that required to make a will

- if the testator does not have this capacity, the will remains valid even after they have destroyed it

What kind of intention is required to revoke a will?

1. absolute

- in which case the revocation is effective immediately

2. or conditional

- only intending to revoke the clause if the replacement clause will be valid - if not, then the original clause will stand

- as T does not have the intention for B to get nothing

- in which case the revocation occurs, but will not be effective until the condition is satisfied.

What is presumed when T is known to have made a will which is in their possession, but is now missing?

- T is presumed to have destroyed their will with an intention to revoke it

- unless evidence is presented to suggest otherwise

What is presumed when T is known to have made a will which is in their possession, but is now damaged?

- T is presumed to have carried out the act of destruction with the intention to revoke

- unless evidence suggests otherwise

How can presumption that T intended to revoke will when it is damaged or missing be rebutted?

- a valid will existed when the deceased died but was lost/damaged after death

- or the deceased did not intend to revoke their will​

- or the deceased did not carry out or give instruction for the act of destruction​.

What wording is required for an express revocation clause to be valid?

"I hereby declare this to be my last will" - not sufficient to revoke previous wills

"I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will" - effective to revoke previous wills and codicils.

What should T do if they want to make 2 wills, for assets in the UK, and assets abroad?

the wills should not attempt to distribute the same assets and neither should revoke the other.

What happens if T has more than 1 valid will at the same time?

- the combined effect of both wills is followed

- but, to the extent they are inconsistent, the later will impliedly revokes the earlier, so the later will is given priority.

How can a codicil revoke a will?

- A codicil will usually only revoke part of a will, and do so by express wording

- if express words of revocation are missing, the codicil only revokes the will to the extent it is inconsistent with the will.

Will a destruction of a will also revoke its codicils?

No

What is a mutual will?

- where one testator agrees with another to each make a will on terms agreed between them

- they also agree that neither of them will amend their will without the consent of the other

What will happen if one party tries to revoke a mutual will, without consent of other party?

- equity may impose a constructive trust over that testator's property on the terms previously agreed and limit the effect of any new will.

- IF it would be unconscionable for one party to change the terms of the will

What are mirror wills?

- the wills of a couple which mirror each other.

- eg wills both leave the estate to whichever survives the other, and then to their children

- no agreement not to change/revoke

How can T amend their will?

- make a new will (best option)

- add a codicil to an existing will

- make manuscript amendments to their original will

key card: what is the rule about the validity of manuscript amendments to wills?

- No obliteration, interlineation, or other alteration made after the execution shall be valid or have any effect

- unless the words are no longer visible

- or unless the alteration shall be executed in the manner as required for the execution of a will

What will be a valid amendment to the manuscript of a will?

- total obliteration of a clause, where original wording cannot be deciphered by natural means

- other form of amendment, if executed like a will (signatures + witnesses)

- amendments made after drafting but before execution

What will not be a valid amendment to the will?

- amendment where the original wording has not been obliterated (and is not executed like a will)

When can extrinsic evidence (eg draft wills) and infra red technology be used to determine T's intention?

- if the amendment was made by a third party

- if T did not intend to revoke the gift

- if T made the obliteration with a conditional intent to revoke the will (= wants to keep the original terms if the amendment was not valid)

What is obliteration, in the context of amending a will?

where the text has been crossed out in such a way that the original text is illegible

What is interlineation, in the context of amending a will?

where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.

What is the general rule about whether amendments made after the will are executed is valid?

- alterations made after execution are generally not valid (unless executed like a will)

- however, alterations after will is made but before it is executed are valid

How do we know if an alteration was made before or after execution?

- there is a rebuttable presumption that an alteration was made after execution (which would render the alteration invalid)

- possible for personal representatives to produce affidavit evidence of the state and condition of the will at the time of execution confirming when the alteration was made

Will an alteration be valid if it is executed like a will? (witnessed and executed)

Yes, will be valid if so.

- should be executed even if it was amended before execution (to avoid issues)

- initials of witnesses under the amendment are sufficient

How else can T confirm manuscript amendments if the amendment itself is not specifically attested?

- re-executing the amended will as a whole

- executing a subsequent codicil that affirms the will it amends

(express reference to the manuscript amendments ensures the presumption that the alterations were made after execution is rebutted)

What are the exceptions to the rule that unattested manuscript alterations are invalid as they are presumed to have been made after execution?

- Where a blank space has been completed there is a presumption that this occurred before execution

- therefore no specific attestation needed

- but this presumption on timing can be rebutted by internal evidence from within the will or by external evidence (eg affidavit)

What is the effect of obliteration on the term's validity?

- If the original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made by the testator with an intention to revoke

- the alteration will be effective without attestation

What is the effect of conditional revocation of a gift?

- if the replacement term is clear, court can revoke the original gift

- if the replacement is not valid (eg cannot be proved to have been made before execution), there is no revocation of original gift

- external evidence is permitted to show the original wording (eg draft wills)

When will manuscript changes be appropriate?

- The amendments have no impact on the interpretation or meaning of the will (e.g., correction of a typo)

- The changes must be made urgently and a codicil or new will cannot be prepared

- otherwise should be avoided if possible

Will obliterations made by 3rd parties be valid?

No

What is a codicil?

- A formal testamentary document that amends an earlier will, rather than replaces it

- Both the original will and codicil remain active and are intended to be read together

When is a codicil valid?

- The rules relating to the validity of a will also apply to any codicil

- T must have testamentary capacity, knowledge and approval, and comply with s.9 Wills Act 1837

When are codicils appropriate?

- To create, edit or revoke provisions in a will

- For minor changes, as significant or multiple changes usually warrant a new will

What are the potential drafting pitfalls with codicils?

- Not expressly noting a change to the testator's name or address

- Not affirming the parts of the original will which remain unchanged

- Missing or incorrect cross reference to the date of the original will or earlier codicil

- New codicil that refers only to the original will and not the previous codicil(s)

- The effect of the codicil does not make sense when read in conjunction with the original will

- Incorrect references to clause numbering

What is the presumption when a codicil does not refer to a part of the will?

- rebuttable presumption that the terms of the original will remain where possible.

- The codicil will only revoke an earlier will to the extent there is inconsistency between them

How does a codicil affect the original will and other previous codicils?

- It 'republishes' the will (and any codicils) to which it expressly refers

- The will is given effect as if it had been executed on the date of the codicil

- When applying general rules of construction, the date of the codicil would be used

- Can effect a clause even if the codicil does not specifically refer to it

What is the effect of revocation by a codicil?

- A codicil may revoke only part of an earlier will (or codicil), or revoke the document in full

- If a codicil expressly revokes a previous will (and codicils to it) in full, the testator will be intestate unless the codicil contains new terms

- If a codicil revokes all/part of a will, and the codicil itself is then revoked, this does not automatically reinstate the revoked terms of the will

How can a codicil revive a will?

- can revive a will that was previously revoked if this is the testator's intention

- but usually preferable to make a new will rather than revive a revoked will

- if the original revoked will was destroyed, it cannot be revived

How does a codicil 'correct problems' with the original will?

- execution of the codicil effectively re-executes the will

- if a B or their spouse witnesses a will, will usually make them unable to inherit

- but if 2 other witnesses witness the codicil, the gift to B under the original will can now be given effect

- however, a B should not witness the codicil, as they will not inherit if so

What is the effect of marriage on a will according to the Wills Act 1837?

- marriage or civil partnership automatically revokes any will or codicil made prior to the marriage

- even if it is not T's intention

How can a will be made in contemplation of marriage to avoid revocation?

- Draft the will in contemplation of marriage

- The will must name the future spouse

- It must identify the intended ceremony

- It must expressly state whether the testator intends the will to be revoked on marriage

- take instructions on the effect of the ceremony not taking place on the will

What are the limitations of making a will in contemplation of marriage?

- Not possible to avoid revocation for a hypothetical marriage (eg "my will shall not be revoked by any future marriages" = not valid)

- Not effective if the testator marries someone other than the person named in the will

What is the effect of divorce on a will?

partial revocation: operates as if the former spouse/civil partner had died on the date of the court order:

1. therefore, appointment of the former spouse as executor/trustee will no longer be effective

2. and any gift in the will to the former spouse will fail

What are the exceptions to the rule that divorce causes partial revocation of a will?

- only applies to wills made before the divorce, not afterwards

- if T can show contrary intention in the will, stating that they wish their spouse to inherit, regardless of divorce, then the general rule will not apply

What are the consequences of revocation by divorce on the rest of the will?

- If multiple executors are named: the remaining executors can be appointed

- If the spouse was the sole executor: a statutory order is followed for appointing an administrator

- Failed gifts may pass to alternative beneficiaries or under the residue, or may result in a full or partial intestacy

Can former spouses bring a claim under IPFDA 1975?

Yes, can bring a claim for reasonable financial provision

- as long as they have not remarried

What is the effect of failure of a gift of chattels?

- the gift will fall into the residue, rather than resulting in partial intestacy

- will only result in intestacy if the residue fails

What is dependent relative revocation? (not how it sounds)

- If a testator revokes the Will and that revocation is shown to be subject to a condition, the revocation is ineffective if the condition is not satisfied

- same as revoking with conditional intent