A recent case provides an example of the impact of failing to understand how Wills are revoked and whether they can later be reinstated. In this situation the result has certainly been a considerable cost to the estate, difficulty for family members and potentially the distribution of half the estate to someone never intended to receive a gift at all.
Revoking a Will
When you make a new Will, there is generally a clause included at the beginning of the document which says something like:
‘I revoke all previous Wills and testamentary dispositions made by me’.
This clause, or variations of it, have the effect of revoking all your former Wills and codicils as soon as your new Will is signed and properly witnessed.
This is one of the most common ways in which your Will is revoked. However, the Queensland succession legislation recognises other circumstances and actions which revoke your Will including:
Physically revoking your Will by:
- burning, tearing or otherwise destroying your Will with the intention of revoking it;
- writing on the Will, or dealing with the Will, in a way that satisfies the court that you intended to revoke it.
Automatic revocation of your Will by:
- getting married or entering into a civil partnership – unless your Will is made in contemplation of that marriage or civil partnership;
- getting divorced or ending a de facto relationship partly revokes your Will for gifts made to a former spouse, any appointment of a former spouse as executor and any power of appointment exercisable by a former spouse. It does not revoke any appointment as guardian of children of your relationship or as trustee of any trusts created under your Will for any children of the relationship.
There are some exceptions and requirements of proof in relation to revoking your Will.
Once it is established that your Will has been effectively revoked, it can only be revived by:
- the re-execution of the Will; or
- execution of a new Will that shows an intention to revive the revoked Will or part of the Will.
The partly or entirely revived Will is taken to be executed on the same day that the Will is revived.
The complexities, and difficulties for family, that can arise when previous Wills are not properly revoked was recently considered by the Court in the estate of Edward Steven Middleton.[1]
The case of Edward
Edward had two children, a son from a previous marriage who he had no relationship with and a daughter. Edward died in December 2018 making two Wills during his lifetime.
The first Will was made in 1994 and appointed his daughter as the executor. In the 1994 Will he left his entire estate to his daughter apart from a small bequest to his parents.
The second Will was prepared by the Public Trustee of Queensland in 2013. It appointed the Public Trustee of Queensland as the Executor and left the majority of his estate to charity with no gift provided to his daughter. Edward’s Will was accompanied by a separate document stating the reasons for the change to his Will was the result of a falling out with his daughter.
In 2016 Edward collected his 2013 Will from the Public Trustee and signed an acknowledgement which stated that it was his responsibility to store the Will safely.
Edward repaired his relationship with his daughter soon after and expressed to others his intention to leave everything to her, except for a sum to care for his pet dog.
Edward also discussed with his daughter his intention to leave everything to her in 2018 after he was diagnosed with lung cancer.
Before Edward’s admission to the Royal Brisbane Hospital in November 2018, he wrote a note to his neighbour which states that the neighbour was to let the daughter know if he didn’t come out of the hospital and his daughter would ‘find my will (to her) and other items’.
The daughter found the 1994 Will in Edward’s filing cabinet in a file labelled ‘Wills’. She found no trace of the 2013 Will.
On 3 December 2018, when Edward was in hospital, his daughter advised Edward that she had found his 1994 Will. Edward acknowledged the 1994 Will as his Will. A social worker asked him if he wanted to re-do his Will and Edward stated that he was “okay with how it was”. Edward passed away 10 days later.
The daughter applied to the court seeking a declaration that the 2013 Will was revoked under the presumption of destruction and Probate should be granted on 1994 Will, as Edward intended this to be his last Will.
However, the Public Trustee of Queensland argued that the revocation of the 2013 Will was ineffective and that the Court ought to declare the 2013 Will as Edward’s last Will.
Legal Principles
The Court relied on the principle in Welch v Phillips[2] which states that:
‘if a will traced to the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and the presumption must have effect unless there is sufficient evidence to repel it.’
The Court also noted that a revoked Will can only be revived by re-execution or by Codicil. Mere statements without more, cannot revive a revoked Will.
The Court found that Edward destroyed the original 2013 Will, intending by its destructions that it unconditionally, be revoked as his last Will.
The 1994 Will was plainly revoked by the terms and execution of the 2013 Will. It was also Edward’s clear intention that his daughter did not benefit from his Estate at that time.
The final issue was whether the 1994 Will was revived. The Court considered that mere statements are insufficient to revive a Will . There must be conduct by adoption of the document, or other physical actions which satisfied the Court that Edward intended the copy of the 1994 Will to be his last Will.
The Court found that there was no conduct sufficient to support a finding that the 1994 Will was to be the document Edward intended to operate as his last Will.
Based on this, the Court found that Edward died intestate, without a valid Will.
Final thoughts
Unfortunately we have no further information as to what this meant to for the distribution of Edward’s estate except to note that the rules of intestacy would have applied to the administration of his estate which would have benefited his daughter and also his estranged son at an increased cost to Edward’s estate.
This case is an important reminder of the legal intricacies of uncommon rules in estate planning and why you should not tackle your estate planning on your own.
If you need help updating your estate planning documents or want to discuss how a change of circumstances might impact upon your estate planning documents, please contact our Wills, Estate Planning + Structuring team. We will be happy to ensure that your estate does not end up as one of our email alerts!
[1] (dec’d) [2019] QSC 128.
2] (1836) 1 Moo PCC 299; 12 ER 828 at 302.
This article was written by Michelle Broome, Lawyer. For further information please contact Sheelagh Gray, Section Head.
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