Revoking a Will - How is it done and what does it mean?

Revoking a Will occurs when you want your current will to have no legal effect. In most instances when people wish to change their will, their old will is expressly revoked by the new one which takes its place.

You are probably thinking “why do I need to revoke my will, can’t I just change it and initial the change?” If only all documents within the legal realm were that easy. The interpretation of wills has caused heartache and issues for family members of a will maker. Particularly, not having a will correctly drafted can lead to interpretation issues, particularly when previous wills are not revoked.

Revoking a will means that the will is no longer valid and does not hold the intentions of the will maker. Therefore, it is very important to acknowledge the circumstances in which a will is revoked as it relies heavily on the will-makers intentions.

Commonly, there are three main ways in which a will is revoked as follows:-  

1. Revocation by Marriage/ Divorce: - If the will maker marries after executing a will, that will is revoked as a matter of law. Similarly, obtaining a divorce after making a will can revoke a will in which any provision in the will in favour of the former spouse, except for an appointment of that spouse as trustee of property held on trust for the beneficiaries, such as children from the marriage, will be revoked.
2. Documentation in Proper Form:- If there is a provision within the later will clearly stating that all former wills are revoked. Further, if a later will is made without revoking any former wills the wills will be read together and will be revoked only to the extent that there is any inconsistency between the wills.
3. By destruction:- Physical destruction of a will such as burning or tearing the will can be interpreted as the will makers intention to revoke a will.

If you have property in another country and have been advised to make a will in that country (which is sound practice) care should be taken to ensure that the separate wills make it clear that the one made later in time does not revoke the earlier will (and that they only operate in the respective countries).  It can get tricky.

There are constant changes within our lifetimes and it is important that wills are updated appropriately to reflect our intentions. It is best to obtain appropriate legal advice to ensure that your intentions are correctly drafted for ease of interpretation later down the track.

If you would like to speak to someone of our office to organise your estate plan, please contact us to arrange an appointment.