Reshaping Your Legacy – A Guide To Altering, Revoking And Reviving Your Will

A properly executed Will is valid from the time of its signing until it takes effect upon the Testator’s death. However, between the creation of a Will and a Testator’s death, some circumstances may change. During the course of the Testator’s lifetime, they may make a number of investments, purchase or dispose of property, remarry or have other changing financial or familial considerations. In this article, our Wills and Estates Team explores the process of altering, revoking and reviving a Will and how to ensure any change does not affect the validity and enforceability of your Will.

When creating a Will, it must be executed in accordance with the relevant legislative requirements. The same goes for any variation, addition or change to a Will, and if not done correctly, a Will that was otherwise valid at the time of its creation may be deemed unenforceable.

Under the Succession Act 1981 (QLD) (‘the Act’), a Will may be:

1. Altered;
2. Revoked; and
3. Revived.

The procedure for giving effect to any of the above is incredibly strict and a Testator must ensure they comply with the formal requirements under the Act.

Alteration

Alteration of a Will occurs when the contents of a Will are changed through informal means (i.e. handwriting). This is distinct from amending a Will via codicil or republishing a Will, as discussed later.

A Will may be altered in the following ways:

• Obliteration – erasing or removing words from the Will;
• Interlineation – adding words between lines of the Will;
• Deletion – crossing out words in the Will; and
• Additions – adding new clauses to the Will.

Under the Act, it is presumed that any alteration, except the filling in of blank spaces in a Will form, is made after execution of the Will. This means that any change (whether made before or after execution) is automatically presumed to be contrary to the Testator’s intention and invalid. That is unless there is evidence to the contrary and the onus of rebutting this presumption is on the person seeking to rely on an alteration.

Therefore, for an alteration to a Will to be effective, it must:

• Be proven that it was made prior to execution of the Will; or
• If made after the Will was executed, be executed in the same way as the Will and initialled by the Testator and two witnesses.

In the absence of the above, the courts will adopt the presumption that the alteration was made after the Will was executed and that the alteration is not effective. The court may also be reluctant to accept an alteration depending on the form or manner in which it is made. For instance, the courts are usually more willing to accept that an interlineation was made prior to execution than an obliteration. Additionally, an alteration to a fully typed Will made in pencil may be considered merely deliberative and not admissible to probate.

A Will can also be updated by either executing a valid codicil, republishing the Will or making a new Will (if the changes needed are substantial). A codicil is a supplementary document to a Will which can validly amend a Will. In contrast, republication occurs when a Will is re-executed to confirm its contents and so that the Will takes effect from the date of republication. Both these methods of amending a Will make sure that alterations are effective and can validate any previously invalid alterations.

Revocation

A Will can be revoked in two ways:

(a)    Voluntary; or

(b)    By operation of law.

Voluntary Revocation

In considering the first of these, a Testator may voluntarily revoke a previously executed Will by simply making and executing another Will or codicil. The new Will or testamentary instrument will also ordinarily include a revocation clause, stating that the Testator revokes all previous Wills. That said, any document which declares the Testator’s intention to revoke a previous Will and which is executed in the same way will have the same effect. The last way that a Will can be voluntarily revoked is by the Testator, or someone in the Testator’s presence and at the Testator’s direction, destroying or dealing with the Will in a way that satisfies the court that the Testator intended to revoke it.

While the above may seem simple enough, care must be taken to ensure that the Testator’s intention to revoke the Will is clear. For example, if a Will is not properly destroyed it may only be considered partially revoked. Moreover, revocation of any former Will by executing a new Will is conditional upon a new Will taking effect, so should a new Will be deemed invalid, the old one will remain in force.

Revocation by Operation of Law

Pursuant to the Act, a Will may also be revoked by an ‘operation of law’ including:

a) Marriage or civil partnership;

b) Divorce

When a Testator marries, any Will made prior to the marriage will cease to be of any effect. It should, however be noted that a Will made in contemplation of marriage will not be revoked after the marriage takes place.

Divorce, annulment or the end of a de facto relationship may also revoke a Will, except where there is evidence of the Testator’s intention that the Will is not to be revoked upon the breakdown of the relationship (i.e. drafted in the Will).

Revival

Revival of a Will can only happen after a Will or part of a Will has been revoked. To restore a previously revoked Will a Testator needs to:

a) Re-execute the revoked Will (if possible); or

b) If the Will has been destroyed, execute a new Will that shows an intention to revive the old Will.

Once a Will has been revived, it will be taken to have been executed on the day it is revived (similar to republication).

RAMSDEN LAWYERS – HOW WE CAN HELP

As highlighted above, the process involved in making changes to a Will is quite complex and can be unforgiving if not done correctly. Caution must be taken to ensure the validity or enforceability of a Will is not affected when making amending, revoking or reviving a Will. Best practice is to always seek legal assistance with any change to your Will or risk dying intestate.

If you are thinking of making changes to your Will or are looking for legal advice or assistance with the drafting of your Will, Ramsden Lawyers can assist you. Our experienced team of lawyers can help you create a valid and legally binding Will that reflects your wishes and ensures that your assets are distributed as you intend. We can advise on structuring your estate plan and help you understand the potential risks and benefits of different estate planning strategies.

Contact our lawyers today to find out more and plan your future.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.