Section 11 of the Succession Act 2006 (New South Wales Consolidated Acts) (the Act) describes the manner in which you can revoke your Will. You can cancel your Will by:
Making a new Will, with an intention to revoke the earlier Will;
The marriage, divorce or annulment of testator’s marriage; and
Destroying, burning or tearing your old Will with an intention to revoke it.
A testator can revoke a Will at any point of time before his/her death. Revocation is not valid if the testator authorises any other person to revoke the Will after one’s death.
The Effect of Marriage
According to Section 12(1) of the Act, marriage generally revokes a Will and it becomes inoperative. This means that if the testator does not make a new Will after marriage, the person will die intestate and the estate will be distributed according to intestacy rules.
However, there are 2 conditions in which provisions of a Will would not be revoked after marriage. They are as follows:
Gift made to a spouse to whom the testator is married at the date of one’s death; or
Any appointment of a spouse as executor, trustee, advisory trustee or guardian to whom the testator is married at the date of the death.
For a Will to be protected from revocation in anticipation of marriage, the following requirements must be met:
It must appear from the Will that the testator was expecting to get married; and
An expressed intention of testator in the Will that it will not to be revoked because of the marriage.
Hence, you should be very careful while drafting your Will and make possible contemplations of marriage so as to protect your Will from revocation.
Section 13 of the Act confers effects on Will upon termination of the testator’s marriage if any:
Gift to the former spouse is revoked; and
Appointment of the former spouse as executor, trustee, advisory trustee or guardian is revoked.
However, the provisions of the Will even after divorce of testator will remain if:
It relates to the appointment of the testator’s former spouse as the trustee of property left on trust for beneficiaries that include the spouse’s children; or
It relates to the grant of a power of appointment exercisable by the testator’s former spouse only in favour of the children of the testator and former spouse.
Doing It in Writing
It is always beneficial to revoke a Will in writing as scripting in itself shows your intent to revoke the Will. Thus any piece of writing revoking the Will does not form a part of the Will but has the effect of revocation.
Revocation of a Will by destruction is permissible under Section 11 the Act. Destruction means burning, tearing or otherwise destroying the Will with the intention of revoking it by the testator himself or on his instruction. For revocation of Will through destruction, two elements must be present:
there must be an intention to revoke the Will; and
the Will must be destroyed actually.
When a Will is lost it is generally considered as revoked. The burden of proof lies on the person who challenges it. For a Will to be considered as lost, it must establish the following facts that:
There was a Will which embodied the testamentary intentions of a testator;
The document revoked all previous Wills;
It had overcome the presumption that the Will is not produced and it has been destroyed; and
There is an evidence of execution of the Will by the testator.
Conditionally or by Mistake
In the event where the testator was ignorant about the revocation clause in a Will, and had revoked it by mistake, it would still be considered as a valid revocation.
A conditional revocation is where a testator includes a clause in a Will whereby the Will can be revoked upon the fulfilment of such conditions.
Mistake and Rectification in Court
To challenge a Will in the Court, you need to establish the fact that the Will was not made as per the instruction of the testator or evidences clerical errors. The Court under Part 2.2 of the Act has all the authority to rectify a particular Will.
For further details feel free to contact our team of experts at Owen Hodge Lawyers.
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