Changes to wills

Contributed by Maree van der Kwast and current to 1 September 2005

CHANGED CIRCUMSTANCES

A will remains in force until the will maker formally changes all or part of it. The fact that the circumstances of the will maker have changed does not mean that the will stops operating or itself changes so as to meet the changed circumstances of the will maker.

The only exception to this occurs when a person marries. Marriage automatically revokes the wills of both partners unless the will(s) are expressed to be made in contemplation of that marriage.

DIVORCE

At present in Western Australia a divorce does not revoke a will. Therefore if a will maker makes a will leaving all of the estate to their spouse, divorces that spouse and then dies without changing the will, the estate will still go to the (now former) spouse.

CHANGING A WILL

Once a will has been properly signed and witnessed any alteration has to conform with the requirements for validity of a will. There must be a signature near the alteration and witnessing of that signature. Informal alterations may be given effect by the courts in a similar fashion to informal wills and codicils.

Sometimes it is necessary for will makers to update their will. This may be done in a number of ways which are set out below:

Codicil
A codicil is an addition to an earlier will in a separate document. A codicil has to meet the formal requirements of a will.

New will
The best advice is that instead of writing one or more codicils to a will, an entirely new will should be made, as it is less likely that a mistake will be made which may invalidate the will.

Revocation
Where the will maker wants a will to stop operating they can revoke it. Revocation may occur in two ways:

• Automatic revocation – a will is automatically revoked when the person who makes it marries. The one exception to this occurs where the will was made before the marriage and is expressed to be in contemplation of that marriage.
• Action by the will maker – there are several ways a will maker can revoke a will. They are:

- by specifically saying in the new valid will that all earlier wills are revoked. This is known as a revocation clause. A simple revocation clause would be: “I revoke all former wills and codicils”;
- a later will may revoke an earlier will partly or completely by implication. A will is revoked by implication when the intention of the testator in the later will is opposite to the testator’s intentions in the earlier will. To avoid uncertainty it is always best to state clearly an intention to revoke an earlier will;
- by making a document which complies with the formal requirements of a will (or a document which does not comply with those requirements but which would be admitted by the Court in the same way as informal wills and codicils) merely stating that the will is revoked. The deceased would then die intestate;
- by absolutely destroying (for example, burning) the earlier will with an intention to revoke it. However, it should be noted that destruction of itself is not enough – there must be an intention to revoke the will. In one case, a woman destroyed her husband’s will during a fight with him. He laughed and said that he would not make another will. The Court found that this was not a valid revocation: Gill v Gill [1908] UKLawRpPro 30; [1909] P 15.