Revocation OF Wills PDF

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REVOCATION OF WILLS Revocation is the act of calling back a will - with intention of annuling or rescinding it.  The fundamental feature of a will is that a will is revocable either wholly or partially at any time before the death of the testator.  S of the Wills Act states that revocation of wil...

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REVOCATION OF WILLS  Revocation is the act of calling back a will - with intention of annuling or rescinding it.  The fundamental feature of a will is that a will is revocable either wholly or partially at any time before the death of the testator.  S.14 of the Wills Act states that revocation of wills can be revoked by ; - the formation of another will or codicil - a duly executed writing - by destruction of the will  REVOCATION BY MARRIAGE  S.12 of the Wills Act though states that a will shall be revoked by testator’s marriage - but there are certain exceptions as well.  Revocation of will by marriage occurs automatically even without the knowledge of the testator  Void marriage will not revoke the will - marriage itself is not effective.  Mette v Mette - Testator is British - went through a marriage ceremony in German customs - with late wife’s half sister - valid in German laws - invalid in English laws - marriage not legal and not recognized by the English laws - did not revoke the will  Voidable marriages will revoke prior wills.  Voidable marriages can be rescinded or annuled upon the option of one or both parties that are part of the marriage contract - hence, marriage still valid.  WHY SHOULD MARRIAGES REVOKE WILLS? - marriage represents a fundamental change in a person’s life - new personal and financial changes - spouses and children should not be deprived of their rights - some of the executors would with for their own spouse and children to benefit from the estate.  DOWNSIDE OF THE MARRIAGES REVOKING WILLS - revocation will be unfair for the children that were part of prior marriages -Gifts to family, friends and charities will be revoked and shall be no more -Rules of revocation seem unnecessary - spouses can still make an application under the family law of English provisions.  EXCEPTIONS TO S.12 - will expressed can be made in contemplation of marriage - cant be revoked by the solemnization of marriages  ELEMENTS TO SATISFY THE EXCEPTION - expressed in the will : there must be intention from the testator to not revoke - must be expressedly stated - mental state are not acceptable, -in contemplation of marriage - unsure on what contemplation means - it can be likelihood or probability.  Estate of Langston (1953) - testator left his property to ‘my fiancee Maida Edith Beck’ in a will that was made 2 months before their marriage - court held testator expressed a contemplation of marriage to that lady. Wills Act in UK - provides testator must be expecting to be married to a particular person - Malaysian Wills Act remains silent on matter.  Reference to marriage should not be expressed very generally.

 Sallis v Jones (1936) - testator in a hurry to marry after death of first wife - made a will - first sentence stated the will is made in contemplation of marriage - there is evidence testator had a lady in mind - he did not propose to her yet when he made the will - but too general - no indication that he had intention to marry anyone in particular - marriage revoked the will - reference to marriage was expressed too generally.  Wills Act UK states that the testator must have intended that the will should not be revoked by the marriage  Malaysian Wills Act - mere contemplation of marriage is sufficient - no need for testator to intend the will to not be revoked by marriage  For exception to apply - testator must marry someone whom he contemplated and not somebody else. REVOCATION UNDER S.14 OF THE WILLS ACT  Method of revocation can be any - but what is important is the presence of mental capacity to revoke the will on the side of the testator.  Re Sabatini (1969) - testatrix was in her nineties - suffered from mental illness she tore her will - Judge stated that she acted irrationally - did not have a sound mind and understanding - judge stated that a testator must have same standard of mind and memory and same degree of understanding when destroying the will as when making it in the first place.  The same rules applies to all methods of revocation under s.14.  REVOCATION BY ANOTHER WILL  EXPRESS REVOCATION - a testator may revoke a previous will either wholly or partially by express words, like another will or a codicil. - Lowthorpe - Lutwidge v Lowthorpe - Lutwidge (1935) The testator’s second later will, contained a clause where he stated that “ I revoke all former wills this being my last will and testament “. Judge held that all the earlier dispositions in the first will was revoked successfully - if the testator stated in his second will that “ this being my last will and testament” would not have been sufficient. It is vague. - Revocation clause will not be operative if there are any contrary intention proven by the second later will. - If revocation clause was included by mistake or without the knowledge of the testator and was not approved by him as well - clause is inoperative.  IMPLIED REVOCATION - Will not only have to be revoked expressedly - it can also be done impliedly - by inconsistency of the both wills ( the latter and former) - the later will shall prevail if both is inconsistent and contradicts. -The whole will can be revoked impliedly - if later will is inconsistent and cover the same grounds - the earlier will is revoked - but document shall be read together. - Lemage v Goodban (1865) Will of a man is the aggregate of his testamentary intentions (instigating implied revocation) -Dempsey v Lawson (1877) Testratix made a will in 1858 and another in 1860 - regarding bequests to a number of Catholic charities - second later will got no revocation claused expressedly stated but has significant difference from earlier will - held that earlier will is duly revoked.

 There must be proof of revocation - must be proof of the contents of the second later will that caused for the will to be revoked - either espressedly or impliedly  Revocation may occur even if later second will is lost or destroyed - need proof  Wood v Wood - testator made two wills and the second later will went missing the managing clerk of the deceased’s attorney stated that the will was validly executed and it contained a revocation clause - intestacy was pronounced and it was held that the earlier first will was revoked.  Re Howard - even if the later second will is revoked - it wont effect the outcome of the initial formation of the second will - the first will is still revoked.  Good of Hodgkinson (1893) - originally testator gave all property to Jane - later made another will - no revocation clause - gave all the same property to sister, Emma - considered that he has revoked the first will he made for Jane - first will was partially revoked by the second.  REVOCATION BY SOME WRITING  According s.14 of Wills Act - will can be revoked - by some writing declaring intention to revoke a will in a proper manner.  Testator did not revoke the will by making another will - testator revokes the will by displaying a document showing an intention to revoke.  Goods of Durance (1872) - testator made a will before emigrating to Canada from Toronto - sent two letters which were executed like wills to brother in England - one letter authorized testator’s solicitor to deliver the will to the brother - other letter instructed the brother to burn the will as soon as he received it without reading - judge held that the will was revoked by letter - cause it is written in the letter the intention to revoke the will.  Some words in the write up must satisfy the fact that the will is to be revoked.  REVOCATION BY DESTRUCTION  S.14 of Wills Act - letter can be revoked by destruction - burning,tearing or destroying the will by the testator - or someone else in the presence of the testator.  ELEMENTS - there must be an act of destruction - there must be an intention to revoke  Cheese v Lovejoy (1877) - destroying without intention will not revoke a will there must be a fulfillment of elements  THE ACT OF DESTRUCTION  The satisfaction of two requirements under the elements - THE FORM OF DESTRUCTION REQUIRED -Act that amounts to burning, tearing or anything else that causes the destroying of will -Doe d Reed v Harris - testator threw will in fire - with intent to revoke it housekeeper snatched it from fire - only a part of it was burnt - will not revoked lacking act of destroying cause will was not destroyed. -Stephens v Taprell - names were cut by using a pen - no clear intention to destroy will - will not revoked Cheese v Lovejoy - crossed off parts of the will - act did not actually injure the will at most can only be held to be an attempt of symbolic destruction - will not revoked act of abandoning the will is not covered by the provision - There is no need for whole will to be destroyed - essence of the instrument must be destroyed

Hobbs v Knight - cutting off the signature by the testator revoked the will - testator signature is a very important part of the will Re Adams - signature was heavily scored out by the testatrix - sign cant be seen by the eyes - revocation of will is successful. -Testator, no matter if he is destroying his own signature or the witness signature wont make a difference - both signatures are important to the will - will is still considered to be revoked - Goods of Wheeler - will found with second witness signature being cut off from the will - rest of document was disfigured but still good condition - will held not to be revoked - idea of testator destroying will by merely tearing of name of one of the witness is unbelievable, not solid enough - Doe d Perkes v Perkes - testator began tearing the will in the heat of passion during quarrel with one of the beneficiaries - bystander stopped him from further tearing the will - beneficiary apologized to testator - testator folded the will and kept it - courts stated there is no revocation -Elms v Elms - testator intended to make a new will - got drunk, started tearing the existing will - friend stopped him - partly torn will was found after his death - courts held that there was no intention to revoke the will - had failed to revoke the will as well because the intended act of destructing the will ( the tearing ) was not completed as well - Estate of Nunn - testatrix cut out a part from the middle of her will and stitched it together - court held only cut out part was revoked. - Whether the act of destructing is voluntary or involuntarily is not discussed. - Partial revocation can occur if the will can still operate without the destroyed part - Leonard v Leonard - testator amended will few times - there were 5 sheets upon death, two got burnt - the other three cant be read without the burnt two - whole will has failed. -BY WHOM MUST THE DESTRUCTION BE DONE -Destruction of will must be done by the testator - someone in the presence of the testator and by his instructions - no age requirement - but the person must have the mental capacity to receive instructions and act accordingly - the presence and direction must be like how it is stated in s.5 - presence requires testator to be mentally or physically present when destruction occurs - physical presence -testator must be able to see the act of destruction - Goods of Dadds - testatrix wanted her codicil to be burnt - she wanted it burnt in a room on the floor below her bedroom - was destroyed - but will was not revoked cause the destruction was not done in her presence. -mental presence - testator must be conscious of the act of destruction - Gill v Gill - testator’s wife tore up the will in a fit of anger when the testator was drunk - no revocation - destruction was unauthorized and testator was unconscious.  THE INTENTION TO REVOKE  Testator must have intention to revoke will  Re Sabatini - degree of mental capacity to revoke it must be the same that is required to make the will in first place  Brunt v Brunt - will not revoked cause the testator that tore it was drunk  Intention to revoke and intention to destroy are two different things  Giles v Warren - testator accidentally thought his will was invalid - based on the assumption, he tore the will - held that the will was not revoked

 Animus revocandi also absent - if testator destroys the will thinking that it had already been revoked  Scott v Scott - testator tore the old will after he constructed a new will - new will was not executed properly - revocation failed due to lack of intention  PRESUMPTIONS  Two important presumptions - mutilated will and lost will  Mutilated Wills - will found on the testator’s death - mutilated condition - known to have been possessed by the testator for the period prior to his death - presumption can be awaken- testator mutilated it with intention to revoke it - Goods of Lewis - will revoked - the will found after the testator’s death - with the signature of testator and witness found to be torn off the will - if testator is insane - presumption will not arise - invalid - presumption can be rebutted with evidence - act of mutilation done without the consent of the testator  Lost Will -If will cannot be found upon death of testator - was last found to be with the testator prior to his death - presumption can arise - that he had destroyed it - presumption can be rebutted with evidence - if testator insane, revocation not valid presumption cant be arised - party alleging occurrence of revocation have to prove that the will was destroyed if presumption got rebutted - oral evidence and draft copies of the will can be used if presumption is rebutted - Sugden v Lord St Leonards - will went missing - the will is complex - will was proven to be revoked by the oral testimony of daughter, who is a beneficiary - she has read the will many times - court accepted oral evidence - she was exceptionally good and solid.  CONDITIONAL REVOCATION  Testator only wishes to revoke the will conditionally - wont be revoked unless condition is fulfilled  Onions v Tyler - testator made a will - then executed a new will with same provision but altered the trustees - the second later will was improperly executed earlier will was valid since it was only revoked by accident  Re Jones - testatrix had 11 nephews and nieces - made will - left her smallholding to her two nieces - before her death she informed bank manager that smallholding is going to other beneficiaries - went to solicitor office but failed to make new will - died without making new will - original will found in mutilated condition after her death, with all signatures cut out - court held that revocation failed - revocation is conditional, only revoked when there is a new will  The case went to COA - decision reversed - testatrix was stated to have wanted to revoke - based on facts of case - for conditional revocation to work, must have clear evidence - showing intention of testator to revoke conditionally.  INSTANCES WHERE CAN APPLY CONDITIONAL REVOCATION RULE PRIMARILY  Dixon v Treasury Solicitor - failure to execute another will - executor revoked will conditionally on executing another will - but failed - so no revocation  Estate of Bottling - failure to execute valid will - testator revoked will conditionally on executing another will - but executed invalidly - revocation failed

 In the Goods of Hope Brown - failure to execute an effective will - revocation was conditional on execution of another will - testator executes a new will that lacks effectiveness  Powell v Powell - failure to revive a will - testator revokes a will with intention to revive an earlier will - revocation is ineffective - not proper way to revive an already revoked will  In the Estate of Southerden - mistaken belief - testator revokes a will in a belief which turns out to be mistaken  Conditional Revocation only valid if the condition is fulfilled.

 ALTERATIONS  S.15 of Wills Act 1959  Consequences of alteration of will may be same as revoked will - alteration may also amount to destruction of will  Alterations made after the execution of will - invalid - unless executed like a will  Alterations must be signed and attested as required by s.5 of Wills Act  Re White - testator dictated few alterations - witness signed but testator did not sign - will not valid - testator can also acknowledge his signature if he isnt physically there  Exception  An invalidly executed act of destroying the will shall have effect of revoking the obliterated words to extent that they are not apparent.  Apparent means optically apparent - must be apparent on the face of the will to the eye  In order for alteration to have revocatory effect, testator must have intention to revoke - accidental obliteration wont be sufficient.  Alteration made before execution of will is valid - if testator intended it to form part of the will.  REVIVAL  S.16 of the Wills Act 1959  Two methods on ways to revive a revoked will -Re-execution of the will -Formalities of s.5 must be complied - must be signed by testator and attested by the witnesses -Subsequent codicil showing an intention to revive -Court must be satisfied that there was clear intention to revive the will  Goods of Steele - legislature meant that the intention should appear on the face of the codicil - either by express words - must have intention to revive the revoked will  Destroyed will cannot be revived - will must exist.  Revival resurrects a will that was revoked - will be counted to have existed from the time it was revived  Documents that did not exist during the primary formation of the will shall be included after its revival - can be incorporated into the revived will  Invalid alterations can be validated after revival.

 LRC in UK considered rejecting the revival process since it was as easy as making will but LRC rejected the idea.  REPUBLICATION  Confirmation of a valid existing will - giving it a new starting date  Two methods of republication (a) Will must be duly re-executed -Must meet the formalities of s.5 - must have been intended for re-execution (b) Will must be referred to another codicil - an already executed codicil that refers to earlier will - republishes the will - as long as testator has intention to republish it  Republication will is made at time of republication....