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Probate - Revocation Cheat Sheet (DRAFT) by

How a Will is revoked.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

GENERAL

When can a Will be revoked?
At any time while the Testator is alive.
How can a Will be revoked?
1. By another Will or Codicil
2. Marriage of Testator
3. By some duly executed document
4. Destru­ction of the Will

LATER WILL OR CODICIL

s16(d) Wills Act
Cancels all former Wills & Testam­entary Dispos­itions
Express Revocation by later Will/C­odicil
 
Express clause that "I revoke all former wills and testam­entary dispos­iti­ons..."­
Toomer v Sobinska
Wrote a note saying former Will is revoked and had 2 witnesses sign. HELD revoked the former Will
Re Thompson Hoo Seung
Made 2 Wills that did not revoke the other because no revocation clause. 3rd Will had revocation clause so revoked all other Wills.
 
"This is my Last Will & Testam­ent­" is NOT sufficient to revoke
Implied revocation by a later Will/C­odicil
 
Document must be construed because it does not expressly state.
 
Provisions which are incons­istent with those in an earlier Will the later Will is said to have impliedly revoked the earlier one to the extent of the incons­ist­ency.
Partly Incons­istent
Lemage v Goodban
If a subsequent testam­entary paper is only partly incons­istent with one of an earlier date, the latter instrument is only revoked as to those parts where it is incons­istent, and both of the papers are entitled to probate.
Totally Incons­istent
Re Bryan's Estate
The last document is so incons­istent with the others that they cannot stand together; and, further, that if this is not plain from the documents themse­lves. Revocation may be implied from the terms of the last document, even though it contain no express clause of revocation and the whole estate of the deceased be not thereby disposed of.
No Incons­istency - No Revocation Clause
The documents taken together will constitute the Last Will
Revocation Clause - No Date
If priority of the documents is unknown then none of the documents will be admitted to probate.
Townsend v Moore
A testatrix executed two codicils, both dated the same day, their provisions being to some extent incons­istent. The evidence of an attesting witness proved, in the opinion of the Court of Appeal, that the two codicils were executed on the same occasion and practi­cally simult­ane­ously. There was nothing to shew which was in fact executed first. Gorell Barnes J. refused to admit either codicil to probate, on the ground that an introd­uctory clause in each shewed that it was intended to operate only in the event of the testatrix surviving her husband, whereas she died before him.
Revocation of revoking Will/C­odicil
If later will revoked, cannot revive the previous Will.
 

MARR­IAGE

S13(1), (2), (3), (4) Wills Act
Automatic conseq­uence - Has to be by VALID marriage.
 
VOID & VOIDABLE MARRIAGE
VOID Marriage
Does NOT revoke a Will because it does not effect change in status. eg Minor
Mette v Mette
Testator married late wife's half sister's wife. Was a prohibited degree of marriage in English law. Did not revoke Will.
VOIDABLE Marriage
Valid until annulled and WILL revoke a Will once annulled.
Re Roberts
Married a person with senile dementia and other mental disorders. Will revoked because marriage not annulled.
 
EXCEPTIONS
s13(3) (4) Wills Act
Will made in CONTEM­PLATION of marriage
 
Expect­ation of the marriage must be inferred from the language used.
In The Estate of Langston
Inferred language - "­beq­ueath unto my fiancée Maida Edith Beck" - Marriage did NOT revoke the Will as it was shown to be made in contem­plation of marriage.
Pilot v Gainfort
Presum­ption of Death - The testator, being married to a woman who had left him some years before and had not been heard of, bequeathed the whole of his estate to a woman with whom he was living and whom he described as his wife. Shortly afterwards he married the woman in question, relying on the legal presum­ption of the death of his wife:-­Held- that the marriage was prima facie valid and that the will was expressed to be made in contem­plation of it, and was accord­ingly within the protection of the section and not revoked by the marriage.
 
Must name or describe the person expecting to marry.
Sallis v Jones
In the T's final sentence of the Will, he declared "that this will is made in contem­plation of marria­ge."­ TThe T married his second wife thereafter in 1927. He died in 1934. A probate action was begun by the execut­rices (his daughters) claiming to have the Will establ­ished. The D (the T's widow) alleged that the Will was invalid, on the ground that it did not come within the exception to s18 of the Wills Act, set out in s. 177 of the Law of Property Act, 1925. Held: for s18 Wills Act to operate to revoke a Will made before marriage, there must be found in the Will something more than a declar­ation relating to or a reference to marriage generally.
 
**Must marry the person intended to marry and not someone else.
s31 Marriage Act
Marriage in extrem­is/­cli­nical marriage (Death bed Marriage)
 
Does NOT revoke a Will
s31(7) MArriage Act
No marriage solemnized under the provisions of this section shall operate as a revocation of any Will.
s14 Marriage Act
Dissol­ution of Marriage
Cancels
Appoin­tment of former spouse as Executor
Gifts Lapse
To former spouse After dissol­ution
 

REVO­CATION BY DESTRU­CTION

s16(d) Wills Act
Must be done by Testator , some other person in his presence and by his direction.
Two requir­ements:
(1) Physical Act (2) Intent to Revoke
Cheese v Lovejoy
A testator drew his pen through the lines of various parts of his will, wrote on the back of it "This is revoke­d," and threw it among a heap of waste papers in his sittin­g-room. A servant took it up and put it on a table in the kitchen. It remained lying about in the kitchen till the testator's death seven or eight years afterw­ards, and was then found uninjured HELD Will was not revoked.
Physical Act of Destru­ction
Must burn, tear or other act of destro­ying. Must be actual destru­ction.
Doe d Reed v Harris
Act of burning revoked the Will.
Extent of destru­ction
Entire Will need not be destroyed.
Otherwise destroying
Crossing out parts.
Ejusden generis rule applies. Striking through the body of the Will with a pen and crossing out the names of the Testator, Witnesses and attest­ation clause was a cancel­lation and not a destru­ction.
Stephens v Taprell

Revo­cation Declaring Intent to Revoke

The intention to revoke may be in the form of a letter written by the testator and executed in the same manner as a will.
It is executed like a Will so it is treated like a Will.
Toomer v Sobinska
Supra