WAE: Revocation

Question 1

What are the six ways in which a will may be revoked?

Answer 1

By destruction; by a later will; by a later codicil; by subsequent marriage; by subsequent divorce; by an effective alteration

Question 2

Under s.20 Wills Act 1837, what two things must coincide to revoke a will by destruction?

Answer 2

A physical act of destruction of the original and an intention to revoke

Question 3

Does simply writing “revoked” on a will revoke it?

Answer 3

No. Writing on it is not a physical act of destruction and is ineffective

Question 4

Can a will be revoked by someone other than the testator?

Answer 4

Only if done at the testator’s direction and in their presence

Question 5

What happens if only part of the will is destroyed?

Answer 5

If the remaining parts operate effectively the revocation is partial; if not, the whole will is revoked

Question 6

What presumptions arise if a will kept in the testator’s possession is missing after death?

Answer 6

Presumed destroyed with intent to revoke, unless evidence rebuts that intention

Question 7

What must administrators prove to admit a lost will copy to probate?

Answer 7

That the will existed at death, wasn’t intended to be revoked, and loss/damage occurred after death

Question 8

What words are needed in a will to expressly revoke all prior wills and codicils?

Answer 8

“I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”

Question 9

If a new will omits an express revocation clause, what happens to prior wills?

Answer 9

They remain valid except insofar as the new will is inconsistent, in which case it impliedly revokes the earlier parts

Question 10

How does a codicil revoke part of a will?

Answer 10

By express wording stating which clauses of the original will it revokes; otherwise it only revokes inconsistent parts

Question 11

What is a mutual will?

Answer 11

An agreement between two testators to make wills on agreed terms and not change them; equity may impose a constructive trust if one revokes

Question 12

How do mirror wills differ from mutual wills?

Answer 12

Mirror wills merely mirror each other’s terms; there is no agreement or constructive trust preventing later revocation

Question 13

Which event automatically revokes all prior wills and codicils under s.18 Wills Act 1837?

Answer 13

The testator’s subsequent marriage

Question 14

How can a will in contemplation of marriage avoid automatic revocation?

Answer 14

It must name the intended spouse and ceremony and expressly state the will survives that specific marriage

Question 15

What revokes a will under s.18A Wills Act 1837?

Answer 15

A final divorce decree treats the former spouse as having died, revoking any gift or appointment to them

Question 16

How does s.18A affect executor appointments?

Answer 16

Any appointment of the former spouse as executor is treated as if they predeceased the testator and is void

Question 17

Can gifts to a former spouse survive divorce if the will says so?

Answer 17

Yes—s.18A only applies unless the will expressly states the testator intends the gift to survive

Question 18

Does s.18A apply to wills made after the divorce?

Answer 18

No—only to wills and codicils made before the divorce decree

Question 19

What should you advise clients about marriage and wills?

Answer 19

That marriage revokes any existing will unless drafted in contemplation of that specific marriage

Question 20

What should you advise clients about divorce and wills?

Answer 20

That divorce voids gifts and appointments to the former spouse unless the will expresses a contrary intention