Your Will deals with your property and assets after you die. It is important that you make a Will, understand the effect of the Will, and also understand what revocation of a Will means.
Obviously, a Will must be revoked before the Testator dies but there are a number of ways this can be done, either voluntarily or by operation of law.
If the Testator wishes to voluntarily revoke the whole of their Will, the most common way for this to be done is to make a new Will with a clause in it that says the later Will revokes all earlier Wills made by the Testator.
If the Testator wishes to voluntarily revoke only part of their Will or wishes to amend their Will in some small way, then this is done by making what is known as a ‘Codicil’.
The revoke your Will voluntarily, you need both the mental capacity to do so and the intention to revoke your Will.
In a judgement of the New South Wales Supreme Court describing the requirements for the valid revocation of a Will, the Court said that the person applying to the Court for a Grant of Probate must:
- Established that there was a Will;
- Demonstrated that the ‘document’ lodged with the Court revoked all previous Wills;
- Rebut the presumption that when a Will is not filed in Court with a Probate Application it is because the Will may have been destroyed by the Testator as a way of revoking it;
- Provide evidence to provide the terms of the Will; and
- Provide evidence of either proper execution of the Will, or that the deceased person intended the document to constitute his or her Will.
Another way to deal with revocation of a Will is through the operation of law. For example, the law provides that a marriage will revoke an earlier Will.
There are some exceptions to this, for example where a Will includes a clause saying that the Will is make in ‘contemplation’ of a marriage to a named person but the Will is not ‘conditional’ upon that marriage occurring then if the Testator marries that person after making the Will, it will not be revoked by the marriage.
Do you have a Will? or do you need to update your Will?. Call Geoff Brazel, Estate Lawyer on 02 4324 7699 or why now attend one of our upcoming Free Wills & Estates Seminars where all attendees receive a Voucher for the preparation of a Free Simple Will.