There are several situations where revoking a Will may be feasible. For instance, life changes such as; marriage, divorce or separation, a new baby, a death of a loved one, buying of a significant asset or investment, or the involvement in a new business, company or trust.
Whilst the reasons for wanting to challenge a Will may vary from person to person, it is very important that the main goal of a Will stays the same – to reflect the testator’s current intentions of what is to happen with their Estate once they pass.
Life changes and its effect on a Will
It is important to note that marrying (or remarrying) automatically revokes your Will, unless your Will clearly shows you were planning this marriage when you made it.
Generally the Will takes effect as if the divorced spouse has died before you, and thus it will not revoke the Will but it will revoke any gift to your former spouse.
If you separate, your former partner will still get your property unless you make a new Will. Unlike with marriage, it is not automatically revoked so it is important that you make a new Will after any break up of any relationship so that it cancels out your old one.
Revoking a Will
In Victoria according to Section 12 of the Wills Act 1997 there are four ways to revoke a Will: By (1) creating a new Will, (2) writing, declaring an intention to revoke it executed according to law within the Wills Act (3) destroying the Will, or (4) by the testator or by someone else in his/her presence and at their direction writing on the Will or dealing with it in such a manner that the Court is satisfied that from the state of the Will, the testator intended to revoke it.
For ease I will go into detail about the two most common: Creating a new Will and Destroying the old Will:
Make a New Will/Changes to an Existing Will
The easiest and thus most recommended way to revoke a Will is simply by creating a new one. The new Will if properly executed and includes language that states your desire to revoke prior Wills ie ‘I hereby revoke any and all old Wills that I have previously made’ will be found to indeed revoke any prior Wills.
It is important to note that once a Will has been signed, there can be no alternation by crossing out or writing in new clauses, hence a new Will is the best way to reflect any changes you want to make. However, for small changes a Codicil (separate legal document explaining these changes) can be used.
Creating a Codicil does not get its own ‘dot point’ so to speak within Victorian legislation in how to revoke a Will because it is not in effect revoking an existing Will. Instead, it is just making slight changes to it.
It is very important that a codicil does not confuse or contradict parts of the original Will because it will then be found invalid, so the changes made via the Codicil will not come into effect. Further, if the Codicil contains a clause cancelling or revoking previous Wills, then it may in fact cancel the Will it was meant to update resulting in no Will at all.
Destroying the old Will
This is a common, but often not a recommended way to revoke a Will. According to the Wills Act, you can burn it, tear it or shred it to pieces, so long as you actually intend to destroy the Will, it will be revoked. This applies to whether you actually destroy it, or someone else destroys it in your presence and at your request.
Ultimately, when it comes to anything to do with Wills; changing them, defending them, attempting to revocate them and especially disputing them we recommend you seek legal advice. Never hesitate to get in touch with the team at Hentys Lawyers.