Study Set Content:
What is the only way T can deprive a once valid will of its legal force?
Revocation.
Revocation
An act that can occur any time before death where T cancels a will or a part of a will so that it is no longer applicable,
Partial revocation
Part of will that remains, remains valid and enforceable
Can T deprive himself of the ability to revoke his will?
No
Is clause that T cannot revoke or amend his will valid
No because it contradicts T's freedom of testation
Where can revocation not take place
- Where there is a joint will that contemplates the massing of estates
- Where spouses has drawn up an ante-nuptial contract that contains testamentary provisions
There are two requirement for common law revocation to take place;
- intention to revoke (animus revocandi)
- a legally recognised act by which this intention is manifested
Five common law methods of revocation
- Will can be revoked by will by the making of a new valid will meeting 2(1)(a) reqs, there must be revocation clause in new will stating that previous wills he made are revoked
- Will can be revoked by T drafting codicil freqs21a and that contains a revocation clause
- Will can be revoked by T and spouse entering into an ante nuptial contract ito S87 of Deed Registries Act, anc must contain revocation clause
- Will can be revoked by a revocation doc must comply wit S2(1)(a), a doc containing revocation clause but no further testamentary provisions (dies intestate)
- Will can be revoked by destruction
If T drafted a subsequent will to replace other will and it does not comply with formalities for valid will
Will wil be invalid and revocation clause in new will wil also be invalid
Codicil must also complu wit S21a requirements otherwise it and revocation claus is
Invalud
If new will/codicicl/revocation doc does not comply wit s21a requirements
Invalid
Court can condone subsequent will and will then condone
Revocation will as well.
Revocation can only take place 2 reqs
- Animus revocandi
- Act of revocation
If animus revocandi is present court can
Condone revocation clause ito of Section 2A of WA
from which date is revocationary clause effective
Only takes affect upon T's death
Revocation by destruction
Where T or person acting on behalf of T destroys will with intention to revoke
Will can be destroyed for revocation in 2 ways
- Physical destruction, the will ceases to exist physically, burning, tearing etc
- Symbolic destruction, will still exists physically but T defaces the doc in some way, erasing, drawing lines etc
Does revocation by destruction have to comply with any formality requirements in order to be valid
No
Common law also recognises..
Implied/tacit revocation
