Legal Tip 279: Revoking a Will

Discussion in 'Wills & Estate Planning' started by Terry_w, 31st Mar, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    A will can be revoked only by a testator (will maker) with testamentary capacity. Others cannot revoke the will - even by destroying it. An attorney cannot revoke a will either.


    In NSW there is legislation on revoking a will

    s11 Succession Act 2006
    SUCCESSION ACT 2006 - SECT 11 When and how can a will be revoked?


    How do you revoke a will?

    Simply ripping it up is one way, but there is a risk that you could die and others look for the will and not find it but they may think it is lost and a copy could be admitted to probate. A better way would be revoking the will in writing signed and witness as a will is.


    Actually, the ideal way would be to do a new will, with a clause revoking the old one.


    Don’t forget without a will your assets will pass via the intestacy laws so they may not end up where you want them to go.
     
  2. thesuperman

    thesuperman Well-Known Member

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    If someone has made a will in Oz then makes another will in one of the EU countries for assets in that EU country (or vice versa), is there a possibility the later will made in that EU country (or vice versa) revoke the will made in Oz if it has that clause in it revoking all prior wills?
     
  3. Tony3008

    Tony3008 Well-Known Member

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    Yes, but not if done properly: my Australian will states at the top that it only applies to property held in Australia and does not revoke any will affecting property outside Australia and my British will has similar UK-specific provisions.
     
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  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    depends on the wording. It is common to start wills off with a clause revoking all previous wills
     
  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    Tony, have you done it this way to avoid paying UK inheritance tax on the Aust assets?
     
  6. Tony3008

    Tony3008 Well-Known Member

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    No, it was because after emigrating I had (past tense) a significant shareholding in the family company (and a little cash) and for these assets it was just a quick division between siblings rather than getting entangled in Australian probate. As far as HMRC UK are concerned, I'm no longer a person of interest: no UK assets other than a small bank balance. It all worked out very well when we wound up the family company: I'd been out of the UK for long enough not to be liable to CGT and wasn't liable here either because the shares were a pre-1987 (?) asset.
     
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  7. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    That does not stop UK tax. A UK asset excepting cash may be liable at source. Residency in AU is no exclusion. People aren't taxed as such the event is. Nobody is exempt incl HRHQEII.