Alteration & republication PDF

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Alteration of willWhere the words of a will are obliterated or altered in some way or interlineations are made, the effect of these changes depends on whether the alterations were made before the execution of the will or after.Alteration made before execution An alteration made before the execution ...

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Alteration of will Where the words of a will are obliterated or altered in some way or interlineations are made, the effect of these changes depends on whether the alterations were made before the execution of the will or after. Alteration made before execution 1. An alteration made before the execution of the will is valid as long as it is final rather than deliberate. 2. Re Bellamy’s Goods – if it is in pencil it is presumed to be merely deliberative, without evidence to the contrary it would not be valid. 3. Hence pencilled alterations to a will written in ink will be presumed to have no effect even though validly executed as in the case of Hawkes v Hawkes. 4. An unattested alteration is rebuttably presumed to have been made after execution (except where the alteration is the filling in of a blank space, when the rebuttable presumption is that this was done prior to execution.) 5. In view of the presumption, it is advisable to execute an alteration even if it has been made before the execution of the will. 6. In Kell v Charmer, it was held that where the alteration is made to fill a blank space in the will, the presumption is that the alteration was made before the execution of the will. Alteration made after execution 1. Alterations made after executions of the will are invalid unless they have been executed in accordance with the formalities required. 2. S.15 of wills act -No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect. 3. The effect of s.15 is that alteration made after the execution of the will are invalid unless it is executed like a will. Thus, the alteration must be signed and attested in the manner as required under s.5 of wills act. The manner of attestation must be done as specified in s.15 of wills act. The signature of the testator and the witness must be made in the margin or in some other part of the will opposite or near to such alteration, or at the foot or end of the will opposite to a memorandum referring to such alteration and written at the end or some part of the will. 4. Re Shearn’s Goods – alterations made after the execution would be invalid unless they have been executed in accordance with the formalities. 5. In the Goods of Treeby - The memorandum was signed by the testator and attested by two witnesses and referred to both the obliteration and interlineation, the will was admitted to probate in its altered state. 6. Re Choo Kim Kiew – the testator made an alteration without any attestation by the witnesses. It was held that it was an invalid alteration. Whether the words are apparent? 1. In practice, if, despite the alteration the deleted words are still visible to the naked eye, such original words shall be admitted to probate with the rest of the will. 2. Re Horsford’s Goods – it was said that where an unattested alteration has been made after the execution of the will the precise effect depends on the whether the original wording is apparent or not apparent. The original wording will be apparent for this

purpose if the original words can be deciphered by an expert by natural means. This means that the original words can be ascertained from the face of the will without physically interfering with the will. 3. Re Hamer’s Estate – where an unattested alteration has been made and the words are apparent, the will is admitted to probate with the original wording ignoring the alteration. 4. Ffinch v. Combe - the obliterated portion became legible once held up to window and the court thus held that there was no revocation. There was no alteration as the original words still can be read. 5. Re Itter – the testatrix pasted strips of paper on part of a will and wrote new amounts on top. The court held that, in these circumstances, infrared photography can be used with a view to ascertaining the original words. Alteration is still valid because words before cannot be seen by natural means. Revival of will 1. Where a will or codicil has been revoked, it may subsequently be restored to effect through its revival. 2. Under S.16 of Wills Act 1959, there are 2 possible methods if a testator wishes to revive a revoked will or codicil. Firstly, by re-execution. As the term suggests, this entails the signing and witnessing of the previously revoked will in the manner prescribed by S.5 of WA 1959. Secondly, by a duly executed codicil that shows an intention to revive the revoked will. 3. One of the requirements to revival of the will is that there must be a valid revocation of the will. The testator must have revoked the will previously as without revocation, there is no revival. 4. Besides, there must be a clear intention of testator to revive the will. 5. Marsh v Marsh - the court held that the taping of the codicil to the will did not suffice as evidence of an intention on part of testator that the will was to be revived by this codicil, thus the will remained revoked. 6. In the Goods of Steele – the court viewed that the reference to the revoked will by date in codicil was not in itself evidence of an intention to revive it. 7. On the other hand, where the codicil not only refers to the revoked will by date, but goes further to refer to its provisions, the courts treat it as evidence of intention to revive. 8. Re Baker – the testator made a codicil, altering some of the provisions of the revoked will. The court held that by thus concerning itself with reformulating the terms of the revoked will, the codicil had shown an intention to revive the will. 9. The courts will also have regard to extrinsic evidence of the surrounding circumstances in which the codicil was executed. 10. In the Goods of Davis – the court held that the writing on the envelope was in substance a codicil, and concluded from the evidence that the reason why testator executed this codicil was to address the concerns raised by E’s sister about the revocation of his earlier will, and that in doing so, he clearly intended to revive that will. 11. Re Taylor – a will is confirmed by a codicil which merely refers to it. 12. A reviving instrument must confirm a particular revoked will: McLeod v McNab Revival where a will has been revoked in stages

If a will is first partially revoked, then wholly revoked, and then revived, the revival does not extend to the part partially revoked unless an intention to this effect is shown. No revival of will revoked by destruction Revival of an earlier revoked will or codicil is possible only where it is still in existence. Accordingly, where revocation was by destruction, it is not possible for the revoked will or codicil to be revived, as seen in Rogers v Goodenough. Once revive, which date to be executed? S.30(2) of WA 1959 - a will re-executed, re-published or revived by a codicil shall be deemed to have been made at the time when it was so re-executed, re-published or revived. Republication of will 1. Whereas revival operates to restore a revoked will to effect, republication serves to confirm a valid will so that it takes effect as if it was made, not on the day it was originally executed, but at the subsequent date on which it was republished. 2. There are two methods of republication: re-execution with proper formalities; by a duly executed codicil containing some reference to the will or codicil to be republished. 3. Re-execution: the mere fact that a will has been re-executed has been held to raise the presumption that, in so doing, testator intended to republish it. However, presumption may be rebutted by evidence to the contrary. In Dunn v Dunn, where the evidence suggested that testator’s re-execution of her will was not intended to republish it but merely to mark her transfer of the will to the chief beneficiary. 4. Executed codicil: it has been found that merely referring to the codicil as being a codicil to a will identified by its date shows sufficient intention to republish the will. In Re JC Taylor, a codicil which described itself as ‘codicil to my will’ was held to be sufficient to republish the will. 5. Republication confirms the will such that the will and codicil are read together as one document: Hawkins v Perpetual Trustee Co 6. If a beneficiary witnesses a will but not a later codicil that republishes the will, the gift is not void (as it would be under the witness beneficiary rule): Anderson v Anderson 7. A gift to a beneficiary is normally interpreted as a gift to a person who matches the description of that beneficiary at the date of the will, but if the will is republished the gift will be to the person who matches the description at the date of republication: Re Hardyman 8. Republication confirms only as much of the will that is able to be brought down to the date of republication: Fairweather v Fairweather. If part of the will has been revoked by an intermediate codicil, the republication does not revive the revoked portions unless there is a revival within the meaning of the Act. If a gift deems prior to republication, the republication cannot revive the gift....