Voluntary Revocation of a Will

The revocation of a Will is simply the cancellation of a Will so that it no longer operates. A will can be revoked  in a number of different ways but importantly in order to revoke a will voluntarily the testator not only must act, but also have the intention, to revoke the will.

In Writing

In some instances a will can be revoked without creating a new will, for example creating a document signed by the testator in the presence of two witnesses, who witness his signature, is a properly executed intention to revoke a Will

Destroying the Will

A testator can revoke a Will by destroying it either by burning, tearing, or in some other manner, however the act must physically destroy the Will, and not simply be symbolic. The testator must show a clear intention to destroy the will as the act of destroying it is insufficient to prove revocation.

Execution of a new Will

The most common way that a Will is revoked is where a later Will is executed where that later will includes a revocation clause. Occasionally a new Will is executed without a revocation clause, however if the new Will is inconsistent with the former Will revocation to the extent of the inconsistency is implied by the Court

By Writing on or Dealing with the Will

In some jurisdictions a Will may be revoked by writing on, or dealing with the Will either by the testator or by some one else at the direction of the testator in his or her presence. In order for the Will to be revoked in this manner a Court must be satisfied that the intention of this act was to revoke the will.

Lost Wills

Where a Will is lost it is presumed that as it was last seen in the custody of the testator it has been revoked by her. In an earlier post regarding Brett Whiteley and the Kitchen Will http://heirsandsuccesses.com/2015/08/21/brett-whiteley-and-the-kitchen-will/ this presumption may be rebutted by evidence suggesting the testator could or would not have revoked the will

Mistake or Conditional Revocation

In proving that the testator intended to revoke a Will there could be either a revocation by Mistake for example where the testator destroys a Will thinking that it has already been revoked – which fails because there was no intention to revoke the Will; or a Conditional revocation where the testator revokes a Will on the basis of a condition that does not occur – for example if a Will was to be revoked on the remarriage of the testators daughter – where this does not occur the Will is not revoked.

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