Wills: Amendment and Revocation

Question 1

What are the 3 ways a testator can make alterations to a will?

Answer 1

1. Make entirely new will
2. Make codicil to existing will
3. Make manuscript amendments to original will

Question 2

Will alterations made to a will by another person be valid?

Answer 2

Only if intended by testator and made in their presence and at their direction

Question 3

What is the difference between an obliteration and interlineation?

Answer 3

• Obliteration = text has been crossd out in such a way that original text is illegible
• Interlineation = writing inserted between existing lines of document (add something previously omitted)

Question 4

What is the general rule on amendments made after the will is executed? What is the effect?

Answer 4

Are invalid and unenforceable; original wording is given effect to and alteration has no effect

Alterations made prior to execution form part of will and enforceable

Question 5

What is the rebuttable presumption as to when an alteration was made?

Answer 5

That alteration was made after execution (so invalid)

The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution (confirming when the alteration was made) although this would require the witnesses to accurately recall what the will looked like at execution.

Question 6

When will alterations to a will after execution be valid?

I.e. presumption rebutted

Answer 6

If executed like a will (signed by testator and 2 witnesses in accordance with s9)

I.e. attested alterations

Question 7

Must the witnesses for an attested alteration be the original 2 that witnessed the will?

Answer 7

No!

Question 8

Will attested alterations only be necessary for those made after the will is executed?

I.e. not for before execution where they would be valid anyway

Answer 8

Should always be executed in same way as will whether before or after - saves requirement to prove when alterations were made (avoids unecessary dispute)

Question 9

What are the two ways a testator can confirm manuscript amendments that were not specifically attested?

Answer 9

By:
1. Re-executing the amended will as a whole
2. Executing a subsequent codicil that affirms the will it amends

Must reference alteration!

Either way - express reference to the manuscript amendments is required to ensure the presumption that the alterations were made after execution is rebutted.

Question 10

What are the 2 exceptions to the general rule that unattested alterations are invalid (as they are presumed to have been made after execution)?

Other than attested alterations

Answer 10

1. Blank space has been completed (presumption this occurred before execution) e.g. I give to my wife Kelli the sum of £[]
2. If original wording is not apparent (obliterated, covered over or cut out); obliteration treated as having been made by testator with intention to revoke and alteration effective

Question 11

When can extrinsic evidence be used to establish original gift/infra-red technology permitted?

Answer 11

Where testator did not intend to revoke gift or TP made amendment

Question 12

What does ‘conditional intent’ mean in conditional revocation?

Answer 12

Where testator has…
1. Attempted to substitute something for original wording; and
2. Attempt has failed (so original gift operates)

Fresh copy of will containing original wording admittted to probate

Question 13

What is the effect of a conditional revocation?

Answer 13

Extrinsic evidence will be permitted to show original wording which will take effect if revocation fails (as the court finds that testator only intended to revoke original gift if the amendment was successful)

I.e. if alteration does not work, can fall back on original gift!

Question 14

When are manuscript amendments appropriate?

Answer 14

Where:

1. Amendments have no impact on interpretation/meaning of will (e.g. correction of a typo, change of a B’s address)
2. Changes must be made urgently and new codicil/will cannot be prepared (e.g. testator requires urgent hospital treatment)

But should always be advised to make new will

If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant

Question 15

What alterations will and will not be given effect to?

Answer 15

Will be given effect to:

• Made before execution of will
• Obliterations with intent to revoke
• Attested alterations
• Completion of a blank space (completed before execution)
• Subsequently confimed by re-execution or codicil which references alteration

Will not be given effect to:

• Made after execution of will/codicil
• Obliterations w/o intent to revoke
• Obliterations by TPs
• Obliterations as conditional revocation (provied extrinsic eidence of original gift can be found)
• Unattested alterations

Question 16

What is a codicil and how is it read alongside a will?

Answer 16

• Document amending earlier will rather than replacing it
• Both documents remain active and intended to be read together (instructions in the original will, as amended by any codicils, are given effect to)

Question 17

What are the requirements of a valid codicil?

Answer 17

• Same as a will (test cap, know+app, s9)
• Drafted with reference to the will it amends

Question 18

When will codicils be appropriate?

Answer 18

• Create new provisions in a will e.g. add legacy for new B
• Edit existing provisions in a will e.g. change value of pecuniary legacy
• Revoke provisions in a will e.g. remove particular B’s entitlement

If wanting to make multiple changes - should execute new will instead

Question 19

How many codicils can a person legally make?

Answer 19

No limit - but should limit number to avoid confusion

Question 20

What are some issues that can occur when drafting codicils?

Answer 20

• Not expressly noting change to testator’s name/address
• Not affirming unchanged parts of original will
• Missing/incorrect cross reference to date of original wil/earlier codicil
• Effect of codicil does not make sense when read in conjunction with will/earlier codicil
• Incorrect references to clause numbering

Question 21

What should codicil expressly state the extent of for the avoidance of doubt?

Answer 21

The extent to which testator confirms or revokes earlier will (and previous codicils)

Question 22

If there is no express words of revocation re earlier will in codicil, what is the (rebuttable) presumption?

Answer 22

Terms of original will remain where possible and codicil only revokes earlier will to the extent there is inconsistency between them

Question 23

How can discrepancies regarding the date of the will/number of codicils be explained?

Answer 23

By provision of affidavit evidence

Question 24

What is the effect on the will/earlier codicil(s) when a testator executes a codicil?

Answer 24

Execution republishes the will to which it expressly refers; will given effect to as if it had been executed on date on which codicil was executed

Question 25

How does the 'republishing of a will' from execution of a codicil affect construction?

Answer 25

Whether or not they are amended by a later codicil, **the date of the codicil is used**

Question 26

What problems with an earlier testamentary document can be corrected by a codicil when it re-executes the will?

Answer 26

* Different witnesses to the codicil can **avoid the effect of s15** where a B/B's spouse witnessed a will (meaining they would have been denied inheritance) * **Unattested manuscript amendments** in a will can be confirmed by later codicil (must expressly refer to the amendments it confirms) * A will **not properly executed in accordance with s9** can be validated by later codicil

Question 27

How much of a will can a codicil revoke?

Answer 27

Part or all

Question 28

What happens if a codicil revokes previous will but does not contain new terms?

Answer 28

Testator becomes effectively intestate

Question 29

Can a codicil revive a previously-revoked will?

Answer 29

Yes if this is the testator's intention

Question 30

If a codicil revokes a will, and then that codicil is subsequently revoked, would this reinstate the terms of the will that had been revoked?

Answer 30

Not automatically

Question 31

How can a will (or clauses in it) be revoked?

Answer 31

* Destruction * Revocation by later will * Revocation by later codicil * Testator's subsequent marriage * Testator's divorce * An effective alteration

Question 32

What is the difference between absolute and conditional revocation?

Answer 32

* Absolute = revocation effective immediately * Conditional = revocation not effective until the condition is satisfied (e.g. on getting divorced)

Question 33

What are the 2 requirements for revocation by destruction?

Answer 33

1. A **physical act of destruction of the original will** (cannot write 'revoked', must burn, tear, destroy) 2. An **intention to revoke** the will (requires same test cap as to make) | One without the other is ineffective

Question 34

Can a will be revoked by another person destroying it?

Answer 34

Only if at the direction of the testator and in his presence

Question 35

What happens if there is complete destruction of the original will by a testator who lacks capacity or intention?

Answer 35

Destruction is not effective and the will remains valid - affidavit evidence required for a copy of will to be admitted to probate

Question 36

What happens if only part of the will is destroyed?

Answer 36

* Only partial destruction if it can **operate effectively with sections that remain** * Whole will revoked if it cannot operate effectively with remaining parts e.g. attestation pages are destroyed inc testator's signature

Question 37

What **presumptions** will arise after death re missing or damaged wills as to revocation? What are they subject to?

Answer 37

If after death, the original document is... * **Missing** = testator presumed to have destroyed will with intention to revoke * **Damaged** = testator presumed to have carried out act of damage/destruction with intention to revoke Both are subject to **evidence suggesting otherwise**

Question 38

How can those administering the deceased's estate **rebut** the presumption of revocation? What happens if they do rebut presumption?

Answer 38

By showing: * A valid will existed when the deceased died but was lost/damaged **after death** * Deceased **did not intend to revoke** their will * Deceased **did not carry out/give instruction for destruction** If evidence is sufficient to rebut presumption = copy of will may be admitted to probate

Question 39

What does an express revocation clause do and when should it be included? | Express revocation by will

Answer 39

* Ensures all previous wills are revoked and there is only one valid will at any one time * Should be included in every will as standard (even if not made one before)

Question 40

Will *"I hereby declare this to be my last will"* be enough to revoke previous wills/codicils?

Answer 40

* No, if this is ued the second will impliedly revokes the first but only to extent they are inconsistent * "*I hereby REVOKE all former wills and testamentary dispositions and declare this to me my last will*" = **effective to revoke previous wills and codicils**

Question 41

Should wills regarding assets abroad be revoked? ## Footnote Common for testator to make will re UK assets and another for different jurisdiction

Answer 41

No - wills should jnot distribute same assets and neither revokes the other

Question 42

Will a will be valid without a revocation clause?

Answer 42

Yes - but as a matter of good drafting it should be included

Question 43

What happens if the later will does not contain an express revocation clause? | Implied revocation by will

Answer 43

The combined effect of new and old will is followed, but **later will impliedly revokes the earlier to the extent they are inconsistent** (later will is given priority)

Question 44

Can a codicil revoke a whole will or only parts within it?

Answer 44

Can revoke either all of will or parts - but usually only parts | Should state extent to which it revokes/confirms previous will

Question 45

What happens if express words of revocation are missing in a codicil?

Answer 45

Only revokes will to extent it is inconsistent with it

Question 46

Will revocation of a will by destruction revoke any codicils to it?

Answer 46

Not necessarily

Question 47

What is the difference between mutual and mirror wills?

Answer 47

* Mutual = each make will on terms agreed, and cannot amend without consent of the other * Mirror = when the wills of a couple mirror each other, execution of which does not imply an agreement not to revoke will later ## Footnote **Mutual** wills require **mutual** consent to amend

Question 48

What are the consequences of revoking a mutual or mirror will?

Answer 48

* Revoking a mutual will = equity may impose CT over testator's property on terms previously agreed and limit effect of any new will * Revoking a mirror will = free to do so at any time

Question 49

What is the effect of marriage on a will under s18?

Answer 49

Marriage (or CP) **automatically revokes in full** any will/codicil made prior to marriage (even if not testator's intention!) | Many clients will be unaware of effect

Question 50

How can a testator avoid the effect of marriage on a will when they are drafting their will? ## Footnote I.e. draft a will and then not get it revoked by marrying

Answer 50

Draft will **in contemplation of marriage** - will must: * Name future spouse/CP * Identify intended ceremony * Expressly state whether testator intends will to be revoked on event of marriage/CP ## Footnote *E.g. at the time of making this will I expect to enter into a civil partnership with () and intend that this my will shall not be revoked by my civil partnership with ()* = **effective**

Question 51

What 2 things will not work in trying to avoid revocation of a will upon marriage?

Answer 51

* A **hypothetical** marriage (i.e. not specific one) * A marriage/CP to one person but then have ceremony with **someone else** ## Footnote *E.g. I intend that this my will shall not be revokoed by any subsequent civil partnership that I choose to enter* = **ineffective** - not made in contemplation of specific partnership

Question 52

If the will is made in contemplation of marriage, what should be included as well?

Answer 52

Instructions for the case where the ceremony does not take place (e.g. death, couple's separation)

Question 53

If instructions re what happens if the ceremony does not take place (for will drafted in contemplation of marriage) are **not** included, does the will take effect?

Answer 53

The will takes effect even if the ceremony does not | Should expressly state intention if do not want this to happen

Question 54

What is the effect of a divorce on the will?

Answer 54

The will takes effect as if **the former spouse/CP had died** on date of court order (which confirms divorce) | Unless the will expressly states otherwise

Question 55

What are the consequences of a former spouse having 'died'?

Answer 55

* Appointment of former spouse/CP as executor or T is not effective * Any gift to the former spouse/CP will fail (and go to named alternative B or under residue)

Question 56

If the former spouse was the sole executor of the will?

Answer 56

A statutory order is followed and administrator appointed in absence of any executor who can act | If more than 1 executor in will = remainer can be appointed (see image)

Question 57

Can a will stop the effect of divorce on their will?

Answer 57

Yes - the effect is **subject to any contrary intention in the will** (i.e. could expressly state they want spouse to inherit notwithstanding any divorce or dissolution)

Question 58

If a testator makes a will **after** divorce - and makes provision for former spouse - will effect still occur?

Answer 58

No - any wills made after divorce are unaffected

Question 59

What is the effect of divorce on a former spouse to bring a claim under IPFDA?

Answer 59

No effect! Can still bring claim | But court order may have effect!