Legal Tip 379: Revoking a will

Legal Tip 379: Revoking a will


Some people make a will but later change their mind and want to ‘cancel’ or revoke it.


How do you revoke a will?


The best way is to sign a later will and mention that this will revokes all former wills. It is not always possible to make a new will though and revoking a will might be a safety mechanism until the new will can be drawn up.


Simply ripping it up is another 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 is to make a mark across the page from corner to corner and writing the word ‘revoked’ on it and signing it. You should also send this to the lawyer who drafted the will and get them to file a note about it as otherwise it could easily lead to court cases after you are gone.


A short deed could also be prepared and witnessed.




Example

Bart is the only surviving family member after the assault on the Simpson family Christmas party by 3 armed men in Santa Clause suits.

Bart is aware of the importance of having a will and having inherited a lot of assets he makes sure he sets one up.

He has decided to leave everything to the anti-Santa society, a charity set up to help stamp out Santa Clauses throughout the world.

Bart’s new girlfriend knows about this will and comes home to find him almost dead on the flood.

Before dialling 000 share finds his will and shreds it, then she calls the ambulance.

Bart doesn’t make it.



She applies for Administration of the estate arguing that Bart had revoked his will. Under the intestacy laws she expects she will inherit everything automatically.



The anti-Santa society employ a solicitor who challenges this saying there is a valid will still in place, but it cannot be located. There is no evidence that it has been revoked and evidence is put on by the lawyer who drafted the will and testifies that he also told Bart to make sure if he did revoke the will to let him know.

Probate is therefore granted as per the will using a copy of the will held by the lawyer.

The girlfriend misses out – but could make a family provision claim.