• An obliteration, interlineation or alteration to a will post-execution must comply with s 14 of the Succession Act 2006 (NSW):
    • it must be properly executed, or
    • (for obliterations) the words before altration must be not apparent, or
    • the dispensing power (s 8) applies.
  • Obliterations, interlineations or alterations that are deliberative only are not admitted as they lack testamentary intent: The Goods of Hall (1871) LR 2 P & D 256.
  • The proper execution of an alteration is sufficient if the signatures of the testator and the witnesses to the alteration are made:
    • in the margin, or otherwise beside, near or relating to the alteration, or
    • as authentication of a memorandum referring to the alteration and written on the will.
  • The dispensing power may apply:
    • there must be a will (a document purporting to embody the testamentary intention),
    • the will must have been altered after its execution,
    • the alteration must not have been made in accordance with s 14 of the Succession Act 2006 (NSW), and
    • the court must be satisfied that the deceased intended the will as altered to constitute their will: James v Burdekin (1990) 3 WAR 298; Connor v Penstone [2010] WASC 197. See also Estate of Nicholls [2014] SASC 204.

Presumption as to when an alteration is made:

  • There is a rebuttable presumption that alterations shown on the face were made after the execution: Goods of Sykes (1873) LR 3 P & D 26.
  • The onus probandi lies on those who assert the alteration was made before execution to prove it: Williams v Ashton (1860) 70 ER 685.

Meaning of ‘apparent’

  • Where words are obliterated from a will so that they are no longer apparent, this amounts to a revocation of those words (akin to revocation by destruction).
  • If the words are apparent then the alteration is not effective to revoke those words, and they can only be removed by a properly executed alteration: Ffinch v Combe [1894] P 191.
  • Apparent means apparent on the face of the instrument and it does not mean capable of being made apparent: Ffinch v Combe [1894] P 191.
    • Magnifying glasses may be used to determine whether the words sought to be obliterated are apparent, but physical interference with the document is not permitted.
    • It is permissible to place paper around the obliteration and hold the document up to a window pane so that the light may illuminate the words under the obliteration: Ffinch v Combe [1894] P 191.
    • Artificial means cannot be used — infrared rays cannot be used to ascertain what was written under strips of paper pasted over parts of the will: Goods v Itter [1950] P 130.
  • If the words are no longer apparent, the testator has shown sufficient intent to revoke that part of the will.
    • Using artificial means goes behind the revocation to discover that which the testator did not intend.

Revocation by obliteration

  • Heavy pen lines through the testator’s signature can amount to revocation of a will by obliteration: Re Adams [1990] 2 All ER 97; Re Fraser [2010] QSC 208. See now Succession Act 2006 (NSW) s 11(1)(e).
  • If words are obliterated so they are no longer apparent, they may still be admitted if it is possible to discover them by some means in cases where the dependant relative revocation principle applies: Goods of Itter [1950] P 130.

Will drafting — meaning of common terms

  • ‘Give, Devise and Bequeath’:
    • In any will it is sufficient to use the word ‘give’ alone.
    • Historically:
      • ‘devise’ referred to a gift of land: Phillips v Beale (1858) 53 ER 545.
      • ‘bequeath’ referred to a gift of chattels: Re Carroll [1959] Qd R 200.
    • The meaning of ‘devise’ and ‘bequeath’ could change, depending on the context in which they were used: Hall v Hall [1892] 1 Ch 361.
  • ‘Land’:
    • A gift of land that fails now falls into a residuary devise: Succession Act 2006 (NSW) s 42.
      • Prior to 1840 (in NSW), a gift of the residue of realty did not pick up failed gifts of realty in the same way that residuary bequests picked up failed gifts of chattels.
    • A gift of land now includes a devise of leasehold interests as well as free hold interests: Succession Act 2006 (NSW) s 36.
      • Prior to 1840, a devise f land passed only the freehold.
    • A gift of land without words of limitation passes the fee simple: Succession Act 2006 (NSW) s 38.
      • Prior to 1840, a gift passed only a life estate.
  • ‘Die without issue’ (and similar words):
    • Taken to mean a failure of issue in the testator’s lifetime and not a total failure of issue: Succession Act 2006 (NSW) s 40.
    • A gift ‘to A, but if A dies without issue, then to B’ means a fee simple in favour of A, subject to a gift over to B on A’s death without issue.
      • Prior to 1840 a gift of realty create an estate tail in A, but with respect to chattels the gift was interpreted as a failure of issue in the testator’s lifetime.
    • This is subject to a contrary intention being shown in the will: Succession Act 2006 (NSW) s 40(2).
    • s 40 does not apply to a gift ‘to the children of A who attain the age of 18 years but if there are no such children then to B’: s 40(2).
    • s 40 must be read in light of s 29B of the Conveyancing Act 1919 (NSW) with respect to persons dying on or after 1 July 1920.
      • In the case of a gift ‘to A, but if A dies without issue then to B’ the gift to B will be void if any issue of A survive or attain 18 years during A’s lifetime, whether or not they survive A.
        • This is subject to contrary intention in the will.

Trusts

  • It is not always necessary to use imperative words to establish a trust.
    • In some cases words of request will suffice: see Geddes 80–81.
    • The test in any cases is whether the words used are sufficiently clear to show an intention to impose a trust: Re Williams [1897] 2 Ch 12, 18–19.

Deposit and access to wills

  • Part 2.5 of the Succession Act 2006 (NSW) allows for the deposit of a will in the Probate Registry: this process is voluntary and is intended as a means to secure the whereabouts of a will.
  • Certain rights of inspection to wills and other testamentary documents (including revoked wills, documents purporting to be wills, parts of wills, and copies of wills) exist — Succession Act 2006 (NSW) s 54:
    • A person who has possession or control of a will of a deceased person must allow inspection of the will by (or provide copies of the will to):
      • any person named or referred to in the will (as beneficiary or not),
      • any person named or referred to in an earlier will as a beneficiary,
      • the surviving spouse, de facto partner (regardless of sex) or issue,
      • a parent or guardina of the deceased,
      • any person who would be entitled to a share of the estate if the deceased had died intestate,
      • any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if the deceased had died intestate,
      • any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased,
      • any person committed with the management of the deceased’s estate under the Protected Estates Act 1983 immediately before the death of the deceased,
      • any attorney under an enduring power of attorney made by the deceased, and
      • any person belonging to a class prescribed by the regulations.
    • A person who has possession or control of a will must produce it in a court if the court so requires.