Revoking a will means that the will is no longer valid. When someone dies, the most recent will (if executed correctly and unrevoked) determines how their estate is controlled. If that person dies with a revoked will, and a new will has not been made or an old will has not been revived, that person will die intestate (without a will).
One of the fundamental characteristics of a will is that it may always be revoked. Revocation may either be voluntary or by operation of law.
A will may be revoked voluntarily by:
- another will or codicil (executed according to the requirements of making a will);
- a declaration in writing of an intention to revoke (executed according to the requirements of making a will); or
- destruction of the will.
In the case of voluntary revocation, it must also be shown that the testator had the necessary capacity to revoke the will and did so with the intention to revoke.
A will may be revoked by operation of law by:
Revocation by operation of law does not require an intention to revoke.
The five methods of revocation:
1. Revocation by another will or codicil
Most wills have a clause revoking prior wills, such as “I revoke all former testamentary dispositions”. On the other hand, expressions such as “last will” and “last and only will” do not properly express an intention to revoke previous wills.
When a testator revokes a will with the intention of creating another will, the revocation of the former will is conditional upon the latter will coming into effect. If the latter will does not come into effect, the former will remains in force.
Where there are inconsistent testamentary instruments, in certain circumstances the court may revoke only part of the first instrument, so that the instruments can be read together. However, where wills are very similar but distribute the testator’s estate differently, the second will is taken to revoke the first will.
2. Revocation by declaration in writing
Any writing declaring an intention to revoke a will is sufficient, provided that the declaration is executed in accordance with the same formalities required for the making of a will.
3. Revocation by destruction
To revoke by destruction, the testator must intend to destroy the will, and actually do so. While the will need not be totally destroyed to be revoked, a mere effort (such as crossing through the will) is insufficient. Destruction needs to be something more substantial, such as obliterating an important part (or parts) of the will so that it becomes illegible. It is still possible, however for a will to be only partially revoked by destruction, leaving the balance effective.
If the testator wishes to destroy the will but the destruction of the will is not carried out by that testator, it must be destroyed by another person in the testator’s presence at the testator’s discretion. A will destroyed by accident or mistake is not revoked (as the testator did not have the necessary intention to revoke that will).
Where a testator’s last will cannot be found, it is presumed that the testator has destroyed it. However, to be able to rely on this will, you must prove:
- that there was a will;
- that it revoked all previous wills;
- that it has not been destroyed;
- the terms of the will; and
- that it was correctly executed.
4. Revocation by marriage
A will is revoked by the marriage of the testator, irrespective of the testator’s intention. If the testator does not make a new will after marriage, the rules relating to intestacy will apply. There are, however, exceptions to this rule including, for example, if a will was made in contemplation of marriage.
5. Revocation by divorce
A will is revoked by the ending of a marriage on or after 9 February 2008, except where there is evidence establishing an intention for this not to happen (such as including a statement to this effect in the will).
For more information on this update or any other wills and estate matters please contact Claire Hawke-Gundill on (08) 9321 3755.
The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.