Wills and succession: revocation, republication and revival of wills

Revocation under the Succession Act 2006 (NSW)

  • A will may only be revoked:
    • in accordance with s 11;
    • by ss 12–13; or
    • by order of the Supreme Court under:
      • in the case of wills of a minor, s 16; or
      • in the case of a person who has lost testamentary capacity, s 18.
  • Revocation can be:
    • voluntary under s 11 by:
      • another will;
      • writing, duly executed and declaring an intention to revoke;
      • burning, tearing or destruction of the will; or
      • writing on or dealing with the will so as to show an intention to revoke; or
    • involuntary under section 12 by marriage; or
    • involuntary under section 13 by termination of marriage.
  • A will is not revoked on the grounds of any presumption of an intention on the ground of an alteration in circumstances: s 11(2).
  • The same capacity for the revocation of a will by destruction is required as for the making of a will: Re Will of Richards [1911] VLR 284; Re Sabatini (1969) 114 SJ 35; Re Estate of Poole; Public Trustee v Elderfield (Unreported, Supreme Court of New South Wales, Young J, 26 April 1996); Young v Cleary (Unreported, Supreme Court of New South Wales, Simos J, 21 October 1997); Gray v Hart [2012] NSWSC 1435 [347].
  • It is not enough that the testator merely appreciates the effect of the revocation: Banks v Goodfellow (1870) LR 5 QB 549.

Revocation by testamentary instrument

  • Revocation by another will can be express or implied.
  • An informal document can revoke an earlier formal will if the lack of formalities is dispensed with under Succession Act 2006 (NSW) s 8.
    • All that is required is that there is a document evincing an intention to revoke that is intended to act as a revocation: Aoun v Clark [2000] NSWSC 274 (27 March 2000); Re Estate of Bolton [2002] NSWSC 235 (28 March 2002) [10].
      • The document can amount to instructions to prepare a fresh will: Aoun v Clark [2000] NSWSC 274 [27].
  • Writing or crossings out by the testator upon the document may show sufficient intention for the dispensing power to operate either by itself or in conjunction with other evidence, even where there are no instructions for or intention to make a new will: Re Estate of O’Dell [2010] NSWSC 678.

Express revocation

  • Express revocation occurs when a later will contains a revocation clause.
  • By default, a revocation clause should be inserted in all wills (unless instructed otherwise) to remove doubt and prevent the need to search for prior wills to determine consistency (or lack of).
  • No special words of revocation are required: Cotterell v Cotterell (1872) LR 2 P & D 397.
    • It must be sufficiently clear that the earlier document is revoked and that this was the testator’s intention.
    • The words ‘this is my last will’ or similar are not enough to show intention to revoke: Cutto v Gilbert (1854) 14 ER 247.
    • A revocation must be accompanied by an intention to revoke (animus revocandi).
      • A revocation clause inserted without the knowledge and approval of the testator will not be admitted to probate: Re Goods of Oswald (1874) LR 3 P & D 162; Re Will of Page [1969] 1 NSWLR 471; Singh v Singh; Estate of Singh [2008] NSWSC 715. Cf Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331.
  • If the testator was aware of the revocation clause but was mistaken as to its effect, the clause will not be omitted: Collins v Elstone [1893] P 1.
  • The rectification power can be used to remove words the testator has not intended to use: Succession Act 2006 (NSW) s 27.
  • The revocation of a will containing a revocation clause does not revive earlier wills revoked by the revocation clause.

Implied revocation

  • Implied revocation occurs where there is no revocation clause in the later will, but the terms indicate that the earlier will is revoked either in part or in whole.
  • Where there are two or more testamentary instruments, courts will construe them together so that the later prevails over the earlier to the extent of the inconsistency: Lemage v Goodban (1865) LR 1 P & D 57.
    • If a person deals with the whole of their property in a later will in a manner inconsistent with the earlier will, this will be an implied revocation: Cadell v Wilcocks [1898] P 21.
      • The Court will look at whether the testator intended for the later will to dispose of the whole of their property and, if so, the earlier will is revoked even if the later does not deal with the whole of the testator’s property: Dempsey v Lawson (1877) LR 2 P & D 98.
        • This is a question of intention in substance rather than form.
        • See also Payten v Perpetual Trustee Co [2005] NSWSC 345; Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331.
  • If the remainder of the earlier will is, after construction, unintelligible or unworkable, the whole of the earlier document is revoked: Leonard v Leonard [1902] P 243.
    • The testator cannot have intended to create an unworkable mess.

Revocation by codicil

  • A codicil is interpreted so as to interfere with a will as little as possible.
    • A clear gift in a will is not revoked except by equally-clear words in a codicil: Hearle v Hicks (1832) 131 ER 476.

Revocation by burning, tearing and destruction

  • Acts of destruction must be accompanied by the animus revocandi: Cheese v Lovejoy (1877) 2 PD 251.
    • Symbolic destruction or abandonment is not sufficient.
  • The words ‘otherwise destroying’ connotes an act in the nature of burning or tearing such as:
    • cutting: Hobbs v Knight (1838) 163 ER 267; or
    • scratching out: Re Goods of Morton (1887) 12 PD 141.
  • Destruction does not apply unless the signature is illegible: Re Godfrey (1893) 69 LT 22.
  • The act of destruction must be complete.
    • Partial destruction, where the testator has stopped part way through the destructive act, is not revocation: Perks v Perks (1820) 106 ER 740.
    • This applies regardless of the cause of stopping as the animus revocandi has not been carried out.
    • The slightest tearing is sufficient if the intention to revoke has been carried out — the animus revocandi must be present throughout the entire act: Bibb v Thomas [1746] 2 Black W 1043; 96 ER 613.
  • Tearing by mistake is not revocation as there is no intention to revoke, but there is a rebuttable presumption that a torn will has been revoked: Re Cowling [1924] P 133.
  • The testator may partially destroy a will by cutting off part of it, so long as it is done in a manner intended to operate as their will: Re Everest [1974] 2 WLR 333; Re Estate of Nicholls [2014] SASC 204.
  • Where there are two or more copies of a will, destruction by the testator of their counterpart is presumed to be revocation of the will: Boughey v Moreton (1758) 161 ER 429.
    • The presumption is weaker where both counterparts are in the possession of the testator and only one is destroyed: Pemberton v Pemberton (1807) 33 ER 303.
    • The presumption is also weakened where the testator destroyed only the duplicate(s) not in their position (such as one held by a solicitor): Payne v Trappes (1847) 163 ER 1143.
  • Destruction can be performed by another person, so long as it is at the testator’s direction and in their presence: Mills v Millward (1889) 15 PD 20.

Writing upon and dealing with the will

  • A testator may revoke a will by writing upon the will or crumpling it in such a way that the Court can infer from its appearance an intention to revoke: Succession Act 2006 (NSW) s 11(1)(f).
  • The writing or crumpling must be done by the testator: Aoun v Clark [2000] NSWSC 274 [18].
  • Intention without any act of destruction is insufficient: Aoun v Clark [2000] NSWSC 274 [19].
  • The intention must be found from the face of the will and not from extrinsic evidence: Aoun v Clark [2000] NSWSC 274 [17].
  • The writing upon or dealing with the will must be done upon the actual will itself, not a copy: Estate of Bolton [2002] NSWSC 235 [9].
    • Cf the rules relating to destruction of a duplicate will in Succession Act 2006 (NSW) ss 11(1)(e)–(f).

Lost wills

  • A will that is not found on death but is last traced to the possession of the testator gives rise to a rebuttable presumption that the testator destroyed it with the requisite intention: Re Estate of Whitely (No 2) (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
    • The strength of the presumption depends on the character of the custody.
      • If the will is not in the exclusive possession of the testator or access to the will was through another person the presumption will not apply: Bar-Mordecai v Rotman [2000] NSWCA 123 [136]–[137].
  • Where a will that makes a careful and complete disposition of the testator’s property and there are no other circumstances suggesting destruction, the presumption may be so slight as to not exist.
    • The presumption may still be rebutted even where the lost will only partly disposes of the estate and fails to contain a residuary gift: Re Estate of Hogben [2014] SASC 91.
  • A lost will that is presumed not to have been revoked can be proved by parole evidence: Sugden v Lord St Leonards (1876) LR 1 PD 154; Lawrence v Australian War Memorial [2014] NSWSC 757 [50].
  • The presumption will not arise if the lost will is traced to the possession of the testator’s solicitor: Re Will of Warren [2014] QSC 10.
  • According to Curley v Duff (1985) 2 NSWLR 716, 718–9 (Young J), five matters must be established when probate of a lost will is sought:
    • that there was actually will;
    • that the will revoked all previous wills;
    • that the presumption that a will has been destroyed is overcome;
    • that there is evidence of the will’s terms; and
    • that there is evidence of execution.
  • Cahill v Rhodes [2002] NSWSC 561 [55] (Campbell J) modified the Curley v Duff propositions by extending them to:
    • documents purporting to embody the testamentary intentions of the deceased and;
    • circumstances where there is evidence of intention that the will or document was intended the constitute the testator’s will.
  • A will that has been destroyed by accident or without the direction of the testator (even in the testator’s presence) has not been destroyed with animus revocandi.
    • A copy may be admitted to probate, or be used as parole evidence of the contents: Koerstz v Norman [2008] NSWSC 133. See also Re Estate of Yiossis [2011] SASC 99.
      • According to Re Estate of Hall [2011] SASC 117 [115] (Gray J) there are several conditions for admitting a copy to probate:
        • that the original will existed;
        • that the original was duly executed or satisfies the legislative requirements allowing an informal will to be admitted to probate;
        • that there is evidence of the terms of the original will;
        • that the copy is an accurate and complete copy;
        • that thorough searches have been conducted to find the original will (including advertisements regarding the missing original);
        • that the original will revoked all previous wills;
        • evidence of the circumstances surrounding the absence of the original;
        • that all persons that would be prejudiced by the granted application have consented and are sui juris; and
        • that the presumption of revocation does not arise or has been rebutted.
  • The grant should be unlimited at least where it is obvious that the original will cannot be found (such as where there is positive evidence of destruction).
  • Where the will is lost, the Court should require an undertaking from the executor to bring the will into court if subsequently found, and to apply for a further grant: Koerstz v Norman [2008] NSWSC 133.

Involuntary revocation

  • Involuntary revocation is by operation of law so there is no need to show intent to revoke.

Revocation by marriage

  • Prima facie, all wills are revoked by marriage: Succession Act 2006 (NSW) s 12(1).
    • A will is not revoked by a void marriage: Re Will of Dawson (1948) 65 WN (NSW) 91.
  • A marriage solemnised in a foreign jurisdiction and recognised as valid under Marriage Act 1961 (Cth) pt VA revokes a will if the testator was domiciled in Australia at the time of marriage: Re Estate of Coomber [2014] SASC 37.
  • Under Succession Act 2006 (NSW) s 12(2) there are excepts where:
    • dispositions are made to the person to whom the testator is married at the time of death;
    • the testator’s spouse as the time of death is appointed as executor, trustee, advisory trustee or guardian; and
    • a will has been made in the exercise of a power of appointment if the relevant property would otherwise not pass to the executor, administrator or public trustee if the power as not exercised.
  • A gift in a will by a person to their future spouse will not be void if they are married to that person at the time of their death, overcome the problem that arose in Layer v Burns Philip Trustee Co Ltd (1986) 6 NSWLR 60.
  • A will expressed to be made in contemplation of marriage is generally not revoked by solemnisation of that marriage: Succession Act 2006 (NSW) s 12(4).
    • The contemplation must be apparent from the face of the will.
    • Contemplation of marriage means intending, proposing or expecting to be married or having marriage in mind as a contingency to provide for, or an end to be aimed at: Hoobin v Hoobin [2004] NSWSC 705 [53].
      • The use of the term ‘my fiancée’ has been held sufficient expression of contemplation of marriage to a particular person: Re Estate of Langston [1953] P 100.
      • The use of the term ‘my wife’ could be ambiguous as it could refer to a person who is to become the testator’s wife, or a description of a person with whom they are living: Layer v Burns Philip Trustee Co Ltd (1986) 6 NSWLR 60.

Revocation by termination of marriage

  • Under Succession Act 2006 (NSW) s 13, on divorce or annulment:
    • any beneficial gift in favour of the former spouse is revoked;
    • the appointment of the former spouse as executor, trustee or guardian is revoked; and
    • a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse is revoked.
  • Revocation will not occur if there is a contrary intention shown in the will: Succession Act 2006 (NSW) s 13(2).
  • Property that would have passed to the former spouse passes as if the former spouse had predeceased the testator (that is, no disposition via the spouse): Succession Act 2006 (NSW) s 13(4).
  • Under Succession Act 2006 (NSW) s 13(3), divorce or annulment does not revoke:
    • appointment of the testator’s former spouse as trustee of property left by will on trust for beneficiaries that include the former spouse’s children; and
    • the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents.
  • Succession Act 2006 (NSW) s 13 does not affect any direction, charge, trust or provision in the will of a testator of any amount in respect of a debt or liability of the testator to the former spouse.

Conditional and mistaken revocation

  • Conditional revocation is where the testator knows and approves of the revocation clause but intends it to operate only upon fulfilment of a condition.
  • Mistaken revocation occurs when the testator inserts a revocation clause, unaware of its existence: Re Will of Page [1969] 1 NSWLR 471; Collins v Elstone [1893] P 1.
    • This clause can be omitted as the testator did not know and approve of the clause.

Dependent relative revocation

  • Dependent relative revocation is a form of conditional revocation where the condition is the validity of another testamentary instrument.
  • If a testator revokes a later will containing a revocation clause in the mistaken belief that it will revive an earlier revoked will, the Court will see if it can construe the intention to revoke as being conditional upon the revival of the earlier will: Re Lindrea [1953] VLR 168.
    • The test is whether the testator intended to revoke the second will anyway, or whether the intention to revoke was to revive the earlier will, notwithstanding that the testator may have had additional intentions: Re Fraser [2010] QSC 208; Lawrence v Australian War Memorial [2014] NSWSC 757.
  • The doctrine of dependent relative revocation can operate so that a revocation clause in a later will operates to revoke some but not all of the clauses of an earlier will — the Court must be satisfied that the testator would not have revoked a clause in the earlier will unless a corresponding clause in the later will was valid: Re Mills (1968) 70 SR (NSW) 36.

Republication

  • Republication confirms an already-effective will but brings the will down to the date of republication.
  • Republication is:
    • the re-execution of an unrevoked will; or
    • the execution of a codicil to an unrevoked will which either expressly or impliedly states that the will is confirmed from the date of execution of the codicil: Re Smith; Bilke v Roper (1890) 45 Ch D 623.
      • The words ‘this is a codicil to my will dated …’ are sufficient.
  • There must be an intention to republish so that at the time of republication the will or codicil must evince an intention that the will should operate from the republished date: Re Smith; Bilke v Roper (1890) 45 Ch D 623.
  • Republication confirms the will such that the will and codicil are read together as one document: Hawkins v Perpetual Trustee Co (1960) 103 CLR 135.
    • 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 (1872) LR 13 Eq 381.
  • A reference in a will to all the land ‘now in my occupation’ means land owned at the date of the will, but includes land acquired between the date of the will and the date of republication: Re Champion; Dudley v Champion [1893] 1 Ch 101.
  • 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; Teesdale v McClintock [1952] 1 Ch 287.
  • Republication confirms only as much of the will that is able to be brought down to the date of republication: Fairweather v Fairweather (1944) 69 CLR 121.
    • 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 Succession Act 2006 (NSW) s 19.
    • If a gift deems prior to republication, the republication cannot revive the gift.

Revival

  • Revival is the reactivation of a revoked testamentary instrument.
  • Under Succession Act 2006 (NSW) s 15(1), a will is only revived by:
    • re-execution; or
    • a codicil duly executed and showing an intention to revive.
  • A will cannot be revived by destroying a later revoking instrument, even if the later instrument is inconsistent: Major v Williams (1843) 163 ER 781.
  • A destroyed will cannot be revived as it is no longer technically in writing: Rodgers v Goodenough (1862) 164 ER 1028.
  • According to Goods of Steele (1868) LR 1 P & D 575, an intention to revive can be shown by:
    • express words referring to the revoked will;
    • a disposition of property inconsistent with any other intention; or
    • some other expression that is sufficiently certain.
  • Mere statement in a codicil that ‘I confirm my last will’ is insufficient, as it refers only to an existing will rather than a revoked will.
  • A reviving instrument must confirm a particular revoked will: McLeod v McNab [1891] AC 471.
  • Extrinsic evidence is admissible to determine which will a codicil purports to revive, but not to show whether the codicil evinces a sufficient intention to revive: Estate of Brian [1974] 2 NSWLR 231.
  • The revival of a will revives any revocation clause so that any intermediate document is revoked: Estate of Anderson [2009] SASC 400.
  • A revival of a will that was initially partly revoked and the remainder revoked later only revives the part of the will most recently revoked: Succession Act 2006 (NSW) s 15(2).
  • A will that is revived is taken to be executed on the date upon which it is revived: Succession Act 2006 (NSW) s 15(4).