DESTROYING YOUR WILL NOT AS STRAIGHTFORWARD AS YOU THINK

By Dan O'Connor • In Estate Planning, Estates, WillsComments Off on DESTROYING YOUR WILL NOT AS STRAIGHTFORWARD AS YOU THINK

Testamentary wishes are dynamic. As personal circumstances and relationships change over the years, our testamentary intentions normally evolve to reflect these developments. If this extends to the point that the testator no longer agrees with the terms of their existing will they may choose to revoke the document by destroying it. Although this sounds simple enough, there are some things to be kept in mind to ensure that any attempted revocation is effective.

Pursuant to Section 13(e) of the Succession Act 1981, a testator may revoke their will by:

  1. burning, tearing or otherwise destroying the will; or
  2. writing on the will or dealing with the will in a way that satisfies the court that the testator intended to revoke it.

If a testator wishes they may direct another person in their presence to destroy their will. This is particularly relevant for those who lack the physical capacity to carry out the act themselves.

Intention to revoke the will is required in parallel to the act of destruction or revocation. The English case of Re Brassington’s Goods [1902] decided that a testator who destroyed his will while in a drunken state did not have the requisite intention because he was of unsound mind at the time of performing the act. Furthermore, the Queensland decision of Hopper (as executor of the will of Admas (dec’d) v Adams [2012] QSC 103 involved a will containing a number of handwritten attempts to revoke distributions contained therein – and these alterations were not deemed sufficient proof of intention.

To avoid the above results it is important that a testator maintains a clear state of mind at the time of destroying the will and preferably carries out the act by burning or tearing the document (rather than writing on it).

The other aspect that a testator needs to keep in mind is that destroying your will means that your estate will be dealt with under intestacy laws until such point as a new will is executed. It is for this reason that an outdated will should only be revoked by the execution of a new will if you do not want the laws on intestacy to apply.

On the other hand, if you are happy with the terms of your will, it is important that you know where the original document is kept at all times because in the event that you die and your original will cannot be located, it may be presumed that you destroyed the document at some point prior to your death. Most law firms offer safe custody services whereby they hold estate planning documents indefinitely and free of charge; giving the testator the peace of mind that their will shall not be lost or damaged.

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