Study Notes · 62 sections
Once a will has been properly executed, it can still be changed or revoked. However, strict legal rules apply to ensure that changes are valid and that the testator's intentions are clearly expressed. Understanding these rules is essential for advising clients who want to modify their estate plans.
Any changes to a will must comply with the same formalities as the original will, unless the changes are made before execution. Failing to follow these rules can result in invalid alterations or unintended revocation. Always advise clients to seek professional guidance when considering changes.
An alteration is any change made to the text of a will after it has been executed. This includes crossing out words, adding new provisions, inserting words between lines, or attaching additional documents. Even seemingly minor changes can have significant legal consequences.
If alterations are made to a will before it is executed (signed and witnessed), they form part of the will's original text. The testator and witnesses sign the will in its altered form, and the alterations are valid as part of the properly executed will. No special formalities apply beyond the normal execution requirements.
Once a will has been executed, any alterations must be made with the same formalities as the original will. The testator must sign or acknowledge the alteration in the presence of two witnesses who must then sign the alteration in the presence of the testator. This makes post-execution alterations practically difficult.
Section 21 of the Wills Act 1837 provides that no alteration to a will after execution has any effect unless it is executed with the same formalities as the will itself. This means the alteration must be signed by the testator (or by someone in their presence and by their direction) and witnessed by two witnesses present at the same time.
Alterations made after execution without proper attestation are invalid. This includes handwritten notes, crossing out words, or adding text without witnesses. The court will examine whether the alteration was made before or after execution based on evidence such as ink colour, handwriting analysis, and witness testimony.
When an alteration is invalid, it is simply ignored for the purpose of construing the will. The will takes effect as if the invalid alteration had never been made. The original text remains in force, and the court will give effect to the will as properly executed.
An invalid alteration does not invalidate the rest of the will. The valid provisions remain in force. However, invalid alterations can create uncertainty and lead to disputes about the testator's true intentions. Avoid post-execution alterations whenever possible.
The doctrine of severability applies to wills. If an alteration is invalid, the rest of the will continues to operate. The court will construe the will based on the valid text that remains. This preserves as much of the testator's intentions as possible.
A codicil is a supplementary document that amends an existing will rather than replacing it entirely. It must be executed with the same formalities as a will. Codicils are appropriate for minor changes such as changing a gift amount, adding a small legacy, or updating an executor appointment.
For significant changes, it is generally better to make a new will. A new will should contain an express revocation clause that revokes all previous wills and codicils. This approach avoids confusion and ensures that the testator's current intentions are clearly expressed in a single document.
While codicils have their place, making a new will is often preferable. A new will provides a complete, up-to-date statement of the testator's wishes and avoids the risk of inconsistencies between multiple documents. It also reduces the risk of documents being lost or separated.
Section 20 of the Wills Act 1837 provides that a will can be revoked by burning, tearing, or otherwise destroying it by the testator or by someone else in their presence and by their direction. The act of destruction demonstrates the testator's intention to revoke the will.
Any act of physical destruction that renders the will illegible or unusable can constitute revocation. Common methods include burning, tearing, shredding, or obliterating the text with marker pen. The key is that the will is destroyed or rendered ineffective as a testamentary document.
Revocation by destruction requires both the physical act of destruction and the intention to revoke the will. If a will is accidentally destroyed (e.g., in a fire or flood), it is not revoked. The court will look at evidence of the testator's intention at the time of destruction.
If a will is lost or accidentally destroyed, it is not revoked. The court can admit a copy to probate if the original cannot be found and there is evidence of its contents. However, the presumption is that a missing will was deliberately destroyed by the testator, so evidence to the contrary is required.
When revocation by destruction is alleged, the court will examine evidence such as witness statements, the condition of the will, and any statements made by the testator. If someone else destroyed the will, evidence that this was done in the testator's presence and at their direction is required.
Section 20 of the Wills Act 1837 provides that a will or codicil can be revoked by a later will or codicil. Most wills contain an express revocation clause stating that all previous wills and codicils are revoked. This provides clear evidence of the testator's intention.
Even without an express revocation clause, a later will may impliedly revoke an earlier will to the extent of any inconsistency. Where the provisions of two wills cannot stand together, the later will prevails. The court construes the wills together to give effect to the testator's overall intentions.
A codicil can revoke specific provisions of a will without revoking the entire will. This allows for targeted changes to the will's provisions. The unrevoked parts of the will remain in force, read together with the codicil as if they formed part of a single document.
Poorly drafted revocation clauses can create uncertainty. For example, a clause revoking "all former wills" might not clearly revoke codicils. Use clear, comprehensive language to ensure all intended documents are revoked and avoid disputes.
Section 18 of the Wills Act 1837 provides that a will is automatically revoked by the testator's marriage (or civil partnership), unless the will was made in contemplation of that marriage. This rule ensures that spouses and civil partners are provided for, reflecting the legal obligations that arise on marriage.
When marriage revokes a will, the entire will is revoked, not just gifts to the new spouse. The testator dies intestate (or partially intestate if there are other assets), and the intestacy rules determine who inherits. This can have unintended consequences, especially if the testator has children from a previous relationship.
A will made in contemplation of a specific marriage is not revoked by that marriage. Section 18B of the Wills Act 1968 sets out the requirements: the will must contain a statement that it is made in contemplation of marriage to a named person, and the marriage must actually take place.
For a contemplation of marriage clause to be effective, it must: (1) expressly state that the will is made in contemplation of marriage, (2) name the intended spouse, and (3) be made within the context of that specific marriage. General references to "future marriage" are insufficient.
Many clients forget that marriage revokes their will. Advise clients who are planning to marry to review their estate planning. A simple contemplation of marriage clause can preserve their will, but only if drafted correctly and before the marriage takes place.
The rules on revocation by marriage apply equally to civil partnerships under the Civil Partnership Act 2004. Formation of a civil partnership revokes an existing will unless it was made in contemplation of that civil partnership. The same requirements for effective contemplation clauses apply.
Section 18A of the Wills Act 1968 provides that divorce or dissolution of a civil partnership does not revoke the entire will. Instead, it treats gifts and appointments to the former spouse as if that spouse had died on the date of the divorce or dissolution. This preserves the rest of the will while removing benefits from the former spouse.
When a will makes a gift to a spouse who later becomes a former spouse through divorce or dissolution, that gift is treated as if the former spouse predeceased the testator. The gift either fails (if no substitute is named) or passes to a substitute beneficiary or under a residuary gift.
The appointment of a former spouse as executor or trustee is also revoked by divorce or dissolution. The former spouse cannot act in these roles. However, if the former spouse is already acting as executor when the divorce occurs, they may continue unless a court removes them.
Where a will creates a trust or life interest for a spouse who later becomes a former spouse, Section 18A treats this as if the former spouse died on the date of the divorce. The trust property then passes according to the terms of the will or trust, often to alternative beneficiaries or into the residuary estate.
Unlike marriage, divorce does not revoke the entire will. The remaining provisions continue in force. However, clients should still review their wills after divorce, as the changed family circumstances may mean their existing wishes are no longer appropriate.
Dependent Relative Revocation (DRR) is an equitable doctrine that presumes a testator did not intend to revoke an earlier will unless a later will was valid. If the later will is invalid, the court may presume that the revocation was dependent on the new will being valid, and the earlier will may be admitted to probate.
For DRR to apply, there must be evidence that: (1) the testator revoked the earlier will, (2) the revocation was conditional on the new will being effective, and (3) the new will is invalid. The court looks at the testator's intentions and the circumstances surrounding the revocation and new will.
DRR can apply to partial revocation where the testator destroys part of a will or makes a codicil that is invalid. The court may reconstruct the original will based on evidence of its contents. This is particularly relevant where a will has been physically altered or partially destroyed.
Evidence for DRR may include: statements by the testator about their intentions, drafts of the new will showing what changes were intended, and the circumstances surrounding the execution of the new will. Without clear evidence, DRR will not be applied.
Dependent Relative Revocation is a complex area of law with significant consequences for estate administration. If DRR may be relevant, seek specialist guidance. The doctrine is applied sparingly and only where clear evidence supports the testator's intentions.
A testator may wish to revive a previously revoked will, for example if they change their mind again after revoking. Revival is not automatic - specific steps must be taken to give effect to the revived will. Section 22 of the Wills Act 1837 governs revival of revoked wills.
A revoked will can be revived by re-executing it with the formalities required for a will. The testator must sign or acknowledge the will in the presence of two witnesses who then sign in the testator's presence. This creates a new will based on the previous text.
A revoked will can also be revived by a codicil that shows an intention to revive it. The codicil must be executed with proper formalities and must clearly express the intention to revive the revoked will. The revived will then takes effect as re-published from the date of the codicil.
Clear evidence of intention to revive is required. A statement in a codicil such as "I revive my will dated 1 January 2020" is sufficient. Mere reference to a revoked will without explicit words of revival is not enough. The intention must be unambiguous.
When advising clients who wish to revive a previous will, ensure that their intention to revive is clearly documented. Use explicit language in any codicil or re-execution. Keep detailed file notes of the client's instructions to avoid disputes about what was intended.
Republication of a will treats it as if it were executed on the date of republication. This can affect the interpretation of the will, particularly where references in the will are construed in light of circumstances existing at the date of republication rather than the original execution date.
Executing a codicil to a will has the effect of re-publishing the will. The will and codicil are read together as if executed on the date of the codicil. This can be important where the testator's circumstances have changed since the original will was made.
The grant of probate confirms the will as the testator's last will. Where there are issues about revocation, revival, or republication, the probate court may need to determine which document represents the testator's final intentions. The court will examine all evidence of the testator's intentions.
Revival brings back a will that has been revoked, while republication treats an existing will as if executed on a later date. Revival requires clear intention to revive, while republication occurs automatically when a codicil is executed. Both doctrines ensure the will reflects the testator's current intentions.