Is a Will always Revocable?
What does it mean to revoke a Will?
To revoke a Will is simply to cancel or change a Will. A testator has the right to revoke a Will whenever they please, as the objective of a Will is to reflect the testator’s current wishes and intentions of what is to happen with their Estate once they pass.
There are several situations where revoking a Will may be feasible. For instance life changes such as; marriage, divorce or separation, a new child or grandchild, movement to a new state, death of a loved one, a named beneficiary or executor dies or becomes unavailable, a major piece of the Estate no longer exists or a major piece of the Estate has a significant change in value, a living trust is created, there is a purchasing of a significant asset or new investment, or there is the involvement in a new business company. However, a testator does not need a ‘valid’ reason to want to revoke their Will, the simple desire to is sufficient.
Life changes and its effect on a Will
It is important that you know how certain life changes will impact a Will irrespective of whether the testator has voluntarily made such changes.
Marriage: In Victoria, marrying (or re-marrying) automatically revokes a Will, unless the Will clearly stipulates that the testator was planning on marriage at the time it was made. If the testator dies without changing their Will, their Will from before the marriage will be considered revoked and the laws of intestacy will apply; with a large portion of their Estate going to the new spouse. This is not a problem for couples who are marrying for the first time; however, it can become a problem for couples who may be marrying for a second or third time and have children from previous relationships who they also wish to provide for.
Divorce: The Will takes effect as if the divorced spouse has died before the testator. So it does not revoke the Will, but it will revoke any gift to the former spouse.
Separation: Separation from a former partner or spouse has no effect on a Will, as unlike marriage it does not automatically revoke the Will. Hence, it is important that at the conclusion of any relationship, the testator updates their Will to reflect their current wishes.
How to revoke a Will
The easiest and thus most recommended way to revoke a Will is simply by creating a new one. To be properly executed, the new Will must reflect the testator’s desire to revoke prior Wills with language such as ‘I hereby revoke any and all old Wills that I have previously made’.
In accordance with Section 12 of the Wills Act 1997 in addition to the creation of a new Will, there are three ways to revoke a Will.
- Writing or declaring an intention to revoke a Will, executed according to law within the Wills Act. Eg a Codicil.
- Destroying the Will; or
- By the testator or by someone else in his/her presence and at the testator’s 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, that the testator intended to revoke it.
Case example of how alterations may not always revoke a Will.
Although in a different jurisdiction, the 2010 Western Australia Supreme Court case of Butterworth v Woods is a sound demonstration of how alterations and obliterations on a Will made by the testator will not always revoke a Will entirely.
The deceased’s ex-wife found his Will in a chest of drawers separate from personal papers. The Will contained extensive alterations, deletions, obliterations and additions. An advertisement for public trustees was also stapled to the front.
This Will was made prior to the marriage of the deceased to his ex wife, however it was made expressly in contemplation of that marriage and contained a provision that it should be void if the marriage did not take place. Accordingly, the Will was not revoked by the marriage.
Thus, the deceased’s sisters sought orders stating that the deceased’s Will had been revoked by the alterations, with the result that the deceased died intestate. They claimed that the alterations together with the advertisement attached to the front of the Will indicated an intention by the deceased to have a new Will made. If the Will, with all the various alterations and additions was found to be revoked, then per the rules of intestacy, the sisters; as the only siblings of the deceased who had no deponents, would be entitled to participate equally in the distribution of the whole of the intestate property and so be entitled to obtain a grant of letters of administration of the Estate.
The judge was satisfied that the informal amendments made to the Will of the deceased were effective to make the revocations, additions and alterations as described, but was not prepared to conclude that the Will as so altered was revoked entirely so as to result in an intestacy. In fact, he found it ‘most unlikely that the deceased would have intended to die intestate’; this mainly being because none of the alterations made were to an essential part of the Will.
Instead, the judge held that the intention of the testator was to leave the Will in effect, but to superimpose the changes which he had made informally upon its original provisions, believing that the Will would take effect as so altered. Accordingly, the judge made orders to reflect such.
Case example of how destroying a Will may not always revoke a Will
Similarly, although in a different jurisdiction, the 2010 South Australian Supreme Court case of the Estate of Engelhardt is a sound demonstration of how destroying a Will may not always be held to revoke the Will.
The deceased had solicitors prepare a Will which the deceased then executed. The deceased then later executed a codicil not prepared by solicitors. The original codicil was found with a photocopy of the Will, and despite the search of the deceased’s home, the original will was unable to be located.
The applicants believed that the photocopy of the Will constituted a true copy of the deceased’s last Will and testament and sought a grant of probate.
The key issue was that original Will was last seen in possession of the deceased, and no person had access to the deceased’s personal documents. Hence, the respondents argued that the deceased had destroyed the original Will, with the intention of revoking it.
The judge however found that since the deceased did not express any intention to change the Will or codicil to any family members, the presumption of revocation was to be rebutted as the evidence strongly indicated that it would have been unlikely the deceased destroyed the Will with an intention of revoking it.
Accordingly, the application of probate was granted, as it was established that the photocopy of the Will was an accurate copy of the Will and the original Will was duly executed.
Both these cases indicate that the intention of the testator at time of death is considered as one the, if not the most fundamental factors in Estate cases. Hence, although technically in the case of Butterworth, the Will had been informally amended and thus revoked, and in the case of Engelhardt, the original Will was lost therefore considered destroyed and again, revoked… the evidence pointed to a different intention of the testator and accordingly the Wills were in fact ordered to be executed…An important lesson!
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. Do not hesitate to get in touch with the team at Hentys Lawyers today.
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