1. HOW A WILL MAY BE REVOKED

(a) Basis for the model provision

4.1 The basis for the model provision was clause 14 of the draft Wills Act 1994 (Vic). Clause 14 provides:

The whole or any part of a will may not be revoked except -

(a) under section 5, 6 or 9 or by the operation of section 12 or 13; or

(b) by a later will; or

(c) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or

(d) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying it with the intention of revoking it.

(b) The National Committee’s decision

4.2 The National Committee accepted clause 14 of the draft Wills Act 1994 (Vic), but was of the view that the model provision should also incorporate section 17(3)(c) of the Wills, Probate and Administration Act 1898 (NSW). Section 17(3)(c) provides for revocation by certain symbolic acts of destruction:

A will may be revoked:

...

(c) by some writing on the will, or by any dealing with the will, by the testator or by some person in the presence of the testator and by the testator’s direction, if the Court is satisfied from the state of the will that the writing was made or the dealing was done with the intention of revoking the will.

4.3 The following provision was suggested as a redraft of clause 14 of the draft Wills Act 1994 (Vic), based on incorporating section 17(3)(c) of the Wills, Probate and Administration Act 1898 (NSW):

A will is revoked wholly or in part -

(a) in the circumstances mentioned in section 5, 6 or 9 or by operation of section 12 or 13; or

(b) by a later will; or

(c) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or

(d) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying it with the intention of revoking it; or

(e) by the testator, or some person in his or her presence and by his or her direction, writing on the will or dealing with the will in such a manner that the court is satisfied from the state of the will that the testator intended to revoke it.

4.4 The National Committee considers the redrafted provision generally to be an improvement on clause 14 of the draft Wills Act 1994 (Vic).

4.5 However, the National Committee is of the view that the introductory words to the model provision should exclude any other means of revoking a will. This is important, as the draft Wills Act 1994 (Vic) does not include a provision to the effect that a will is not revoked by any presumption of an intention on the ground of an alteration of circumstance.⁶¹

4.6 For this reason, the National Committee prefers the original introductory words to clause 14 of the draft Wills Act 1994 (Vic) to the introductory words in the redrafted version of clause 14.

RECOMMENDATION

The National Committee recommends that a provision to the effect of clause 14 of the draft Wills Act 1994 (Vic), as redrafted above, be included in the draft model wills legislation, save that the introductory words of the model provision should make it clear that the provision is exhaustive as to the means by which a will may be revoked.

MODEL PROVISION: CLAUSE 13

13 How a will may be revoked

The whole or any part of a will may be revoked only:

(a) in the circumstances mentioned in Division 1 or 2 of Part 3 or by the operation of section 14 or 15, or

(b) by a later will, or

(c) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or

(d) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying it with the intention of the testator of revoking it, or

(e) by the testator, or some person in his or her presence and by his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.

(a) Basis for the model provision

4.7 The basis for the model provision was clause 12 of the draft Wills Act 1994 (Vic). Clause 12 provides:

(1) A will is revoked by the marriage of the testator.

(2) Despite sub-section (1) -


(a) a disposition to the person to whom the testator is married at the time of his or her death; and

(b) any appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death; and

(c) the exercise by will of a power of appointment when, if the testator did not exercise the power, the property so appointed would not pass to the executor or administrator or the State Trustee under section 19 of the Administration and Probate Act 1958 -


is not revoked by the marriage of the testator.

(3) A will is not revoked by the marriage of the testator if it appears from the terms of the will, or from those terms taken together with circumstances existing at the time the will was made, that the testator contemplated marrying and intended the will to take effect in that event.

(b) The National Committee’s decision

4.8 The National Committee initially agreed to adopt subsections 15(3) and (4) of the Wills, Probate and Administration Act 1898 (NSW) instead of clause 12(3) of the draft Wills Act 1994 (Vic) in relation to wills made in contemplation of marriage, but subject to considering whether the equivalent Australian Capital Territory provision (section 20 of the Wills Act 1968 (ACT)) was clearer.

(c) Specific issues

(i) Expression of contemplation of marriage

4.9 Subsections 15(3) and (4) of the Wills, Probate and Administration Act 1898 (NSW) provide:

(3) A will made after the commencement of this subsection in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated.

(4) A will made after the commencement of subsection (3) which is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

4.10 Section 20 of the Wills Act 1968 (ACT) provides:

(1) Subject to subsections (2) and (3), where a person marries after having made a will, the will is revoked by the marriage unless the will was expressed to have been made in contemplation of that marriage.

(2) Where a testator marries after he has made a will by which he has exercised a power of appointing real property or personal property by will, the marriage does not revoke the will in so far as it constitutes an exercise of that power if the property so appointed would not, in default of the testator exercising that power, pass to an executor under any other will of the testator or to an administrator of any estate of the testator.

(3) Where a will contains a devise or bequest to, an appointment of property in favour of, or a conferral of a power of appointment on, a person, being a devise, bequest, appointment or conferral expressed to be in contemplation of the marriage of the testator to that person-


(a) the devise, bequest, appointment or conferral is not revoked by the marriage; and

(b) the remaining provisions of the will are not revoked by the marriage unless a contrary intention appears from the will or from evidence admitted pursuant to section 12B.

4.11 The New South Wales provision is broader than clause 12(3) of the draft Wills Act 1994 (Vic), which limits the circumstances in which a will is not revoked by marriage to where it appears from the “terms of the will”, or from those terms taken together with “circumstances existing at the time the will was made”, that the testator contemplated marrying and intended the will to take effect in that event. The draft Victorian provision does not permit the admission of evidence of statements made by the testator; nor does it save a will if the contemplation of marriage is not expressed in the will.

4.12 The Australian Capital Territory provision requires a will to be “expressed to have been made in contemplation of” the particular marriage, both generally and (subsection (3)) where only part of the will is affected. The New South Wales provision does not require the will to be “expressed” to be made in contemplation of marriage, unless the will is made in contemplation of marriage generally. Where a particular marriage is contemplated, that contemplation may be shown by extrinsic evidence.

4.13 The National Committee prefers subsections 15(3) and (4) of the Wills, Probate and Administration Act 1898 (NSW).

(ii) Commencement of provision

4.14 A concern was expressed about the inclusion of the words in subsections 15(3) and (4) of the Wills, Probate and Administration Act 1898 (NSW) that would, if incorporated into the model provision, prevent the model provision from applying to wills made before its commencement. Given that the purpose of the model provision is remedial, the National Committee is of the view that the provision should have an expansive operation and that the words “after the commencement of this subsection” in section 15(3) and the words “made after the commencement of subsection (3)” in section 15(4) should be omitted from the model provision.

RECOMMENDATION

The National Committee recommends that a provision to the effect of subclauses 12(1) and (2) of the draft Wills Act 1994 (Vic) and subsections 15(3) and 15(4) of the Wills, Probate and Administration Act 1898 (NSW) be included in the draft model wills legislation, save that the words “after the commencement of this subsection” in what will become subclause (3) of the model provision, and the words “made after the commencement of subsection (3)” in what will become subclause (4) of the model provision should be omitted.

The model provision should incorporate the concepts that:

• a will is not revoked if made in contemplation of a particular marriage and that marriage is solemnised (there being no need for the contemplation of marriage to be expressed in the will); and
• a will is not revoked if expressed to be made in contemplation of marriage generally and the testator subsequently marries.

MODEL PROVISION: CLAUSE 14

14 Effect of marriage on a will

(1) A will is revoked by the marriage of the testator.

(2) However, the following are not revoked by the marriage of the testator:


(a) a disposition to the person to whom the testator is married at the time of his or her death, and

(b) any appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death, and

(c) a will made in exercise of a power of appointment, if the property so appointed would not pass to the executor, administrator or [name of the appropriate statutory body and name of legislation of the jurisdiction that governs the vesting of an intestate’s estate until administration is granted in respect of the intestate’s estate] if the power of appointment was not exercised.


(3) A will made in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated.

(4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

3. EFFECT OF DIVORCE ON A WILL

(a) Basis for the model provision

4.15 The basis for the model provision was section 16A of the Wills Act 1958 (Vic). Section 16A provides:⁶²

(1) The ending of a marriage revokes -

(a) any disposition made in a will in existence at the time the marriage ends by a testator to the testator’s spouse; and

(b) any appointment of the testator’s spouse as an executor, trustee, advisory trustee or guardian made by the will; and

(c) any grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s spouse.


(2) For the purposes of this section, a marriage ends -

(a) when a decree of dissolution of the marriage becomes absolute under the Family Law Act 1975 of the Commonwealth; or

(b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or

(c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.


(3) Despite sub-section (1), the ending of a marriage does not revoke -

(a) the appointment of the testator’s spouse as the guardian of the spouse’s children or as a trustee of property left by the will upon trust for beneficiaries that include the spouse’s children; or

(b) the grant of a power of appointment exercisable by the testator’s spouse exclusively in favour of the spouse’s children.


(4) With respect to the revocation of any disposition, appointment or grant by this section, the will is to take effect as if the spouse had died before the testator.

(5) This section does not apply to any disposition, appointment or grant if it appears from the terms of the will that the testator did not want the disposition, appointment or grant to be revoked on the ending of the marriage.

(6) In this section “spouse” means the person who was the testator’s spouse immediately before the marriage ended and includes a party to a purported or void marriage.

(b) The National Committee’s decision

4.16 The National Committee agreed on the following matters:

• The phrase “any beneficial disposition” should be substituted for “any disposition” in the model provision based on section 16A(1)(a) of the Wills Act 1958 (Vic).

• The model provision should be subject to the testator’s contrary intention, which should be able to be shown either in the will or by extrinsic evidence.

• It is not necessary for the model provision to define the phrase “any beneficial disposition” to include a liability pursuant to a promise. It had been suggested that divorce should not revoke a provision made by will for a spouse where the provision was made in pursuance of a promise made by the testator to the spouse. That suggestion may have been made in the context of the New Zealand Testamentary Promises legislation.⁶³

However, the National Committee is of the view that there is no need to refer to such promises. Where there is a promise for valuable consideration to confer a benefit by will, if the testator fails to leave the legacy in his or her will, or revokes it, the promisee can claim payment from the testator’s estate.⁶⁴

• The words “as the guardian of the spouse’s children or”, which appear in section 16A(3)(a) of the Wills Act 1958 (Vic), should be omitted from the model provision. It appears that these words were inserted in error. A testator may appoint a person to be the guardian of his or her own children, but not of someone else’s children. A testator may well appoint a spouse to be the guardian of a child of the testator who is not also the spouse’s child; and in the event of divorce that appointment would be revoked. But a testator cannot appoint his or her spouse to be the guardian of the spouse’s child if the child is not also the testator’s child. In any event, if the child is the child of the testator and the surviving spouse, the appointment is unnecessary; the surviving spouse is by law the guardian of that child and always has been by natural right. The words in the section represent a misunderstanding of this law.

• The present wording of subsection (3)(b) would have the effect that, notwithstanding divorce, the testator’s spouse could exercise a power of appointment in favour of children who were children of the spouse, but not of the testator.

The National Committee is of the view that subsection (3)(b) of the model provision should be amended so that it refers to a power of appointment that is exercisable by the testator’s spouse exclusively in favour of children who are children of both the testator and the spouse. This is to avoid placing the spouse in a position where he or she has to choose between children of a marriage with the testator and possibly children of a current marriage.

If the testator wishes to benefit children of a former spouse, who are not also children of the testator, he or she should, following the divorce, make a new will to that effect.

RECOMMENDATION

The National Committee recommends that a provision to the effect of section 16A of the Wills Act 1958 (Vic) be included in the draft model wills legislation, save that:

• the word “beneficial” should be inserted before the word “disposition” in subsection (1)(a);
• the words “as the guardian of the spouse’s children or” should be deleted from subsection (3)(a); and
• subsection (3)(b) should be redrafted to delete the reference to “the spouse’s children” and to include a reference to “children of whom both the testator and spouse are parents”.

The provision should be subject to the testator’s contrary intention, which should be able to be shown either in the will or by extrinsic evidence.⁶⁵

MODEL PROVISION: CLAUSE 15

15 Effect of divorce etc on a will

(1) The ending of a testator’s marriage revokes:


(a) any beneficial disposition made in a will in existence at the time the marriage ends by a testator to the testator’s spouse, and

(b) any appointment of the testator’s spouse as an executor, trustee, advisory trustee or guardian made by the will, and

(c) any grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s spouse.


(2) However, the ending of a testator’s marriage does not revoke:

(a) the appointment of the testator’s spouse as trustee of property left by the will on trust for beneficiaries that include the spouse’s children, or

(b) the grant of a power of appointment exercisable by the testator’s spouse exclusively in favour of the children of whom both the testator and spouse are parents.


(3) With respect to the revocation of any disposition, appointment or grant by this section, the will is to take effect as if the testator’s spouse had died before the testator.

(4) Subsection (1) does not apply if a contrary intention appears in the will or can otherwise be established.

(5) For the purposes of this section, a marriage ends:


(a) when a decree of dissolution of the marriage becomes absolute under the Family Law Act 1975 of the Commonwealth, or

(b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia, or

(c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.


(6) In this section:

testator’s spouse means the person who was the testator’s spouse immediately before the marriage ended and includes a party to a purported or void marriage.

(a) Basis for the model provision

4.17 The basis for the model provision was clause 15 of the draft Wills Act 1994 (Vic). Clause 15 provides:

(1) An alteration to a will after it has been executed is not effective unless the alteration is executed in the manner in which a will is required to be executed by this Act or comes under section 5, section 6 or section 9.

(2) Sub-section (1) does not apply to an alteration to a will if the words or effect of the will are no longer apparent because of the alteration.

(3) If a will is altered, it is sufficient compliance with the requirements for execution, if the signature of the testator and of the witnesses to the alteration are made -


(a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration; or

(b) as authentication of a memorandum referring to the alteration and written on the will.

(b) The National Committee’s decision

4.18 The National Committee accepted clause 15.

RECOMMENDATION

The National Committee recommends that a provision to the effect of clause 15 of the draft Wills Act 1994 (Vic) be included in the draft model wills legislation.

MODEL PROVISION: CLAUSE 16

16 How a will may be altered

(1) An alteration to a will after it has been executed is not effective unless the alteration is executed in the manner in which a will is required to be executed by this Act or occurs under Division 1 or 2 of Part 3.

(2) Subsection (1) does not apply to an alteration to a will if the words or effect of the will are no longer apparent because of the alteration.

(3) If a will is altered, it is sufficient compliance with the requirements for execution if the signatures of the testator and of the witnesses to the alteration are made:


(a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration, or

(b) as authentication of a memorandum referring to the alteration and written on the will.

5. HOW A REVOKED WILL MAY BE REVIVED

(a) Basis for the model provision

4.19 The basis for the model provision was clause 16 of the draft Wills Act 1994 (Vic). Clause 16 provides:

(1) A will or part of a will that has been revoked is revived by re-execution or by execution of a codicil showing an intention to revive the will or part.

(2) A revival of a will which was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked.

(3) Sub-section (2) does not apply if a contrary intention appears in the will.

(4) A will which has been revoked and later revived either wholly or partly is to be taken to have been executed on the date on which the will is revived.

(b) The National Committee’s decision

4.20 The National Committee accepted clause 16, subject to the following amendments being made:

• The word “will” should be substituted for the word “codicil” in subclause (1) of the model provision to make the effect of the provision clearer. Subclause (1) would then provide:

A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part.

• The word “reviving” should be inserted before the word “will” in subclause (3) of the model provision to make the effect of the provision clearer. Subclause (3) would then provide:

Subsection (2) does not apply if a contrary intention appears in the reviving will.

RECOMMENDATION

The National Committee recommends that a provision to the effect of clause 16 of the draft Wills Act 1994 (Vic) be included in the draft model wills legislation, subject to amending subclauses (1) and (3) to provide:⁶⁶

(1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will⁶⁷ showing an intention to revive the will or part.

...

(3) Subsection (2) does not apply if a contrary intention appears in the reviving will.

MODEL PROVISION: CLAUSE 17

17 How a revoked will may be revived

(1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part.

(2) A revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked.

(3) Subsection (2) does not apply if a contrary intention appears in the reviving will.

(4) A will that has been revoked and later revived, either wholly or partly, is taken to have been executed on the date on which the will is revived.

FOOTNOTES

61. See, for example, s 19 of the Succession Act 1981 (Qld).

62. Section 16A was inserted by s 14 of the Administration and Probate (Amendment) Act 1994 (Vic) (No 10 of 1994). Section 16A will itself be repealed when the Wills Act 1997 (Vic) commences. The original provision included in the draft Wills Act 1994 (Vic) provided:

13 (1) Termination of the marriage or the annulment of the marriage of a testator revokes -
(a) any disposition by the testator in favour of his or her spouse other than a power of appointment exercisable by the spouse exclusively in favour of the spouse’s children; and
(b) any appointment made by the testator of his or her spouse as executor, trustee, advisory trustee or guardian other than an appointment of the spouse as guardian of the spouse’s children, or as trustee of property left by the will to trustees upon trust for beneficiaries including the spouse’s children
except so far as a contrary intention appears by the will.
(2) If a disposition or appointment is revoked by sub-section (1), that disposition or appointment takes effect as if the spouse had predeceased the testator.
(3) For the purposes of this section, the termination or annulment of a marriage occurs, or shall be taken to occur -
(a) when a decree of dissolution of the marriage pursuant to the Family Law Act becomes absolute; or
(b) on the making of a decree of nullity pursuant to the Family Law Act in respect of a purported marriage which is void; or
(c) on the termination or annulment of the marriage, in accordance with the law of a place outside Australia if the termination or annulment is recognised in Australia in accordance with the Family Law Act.
(4) In this section -
“Family Law Act” means the Family Law Act 1975 of the Commonwealth;
“spouse”, in relation to a testator, means the person who, immediately before the termination of the testator’s marriage, was the testator’s spouse, or, in the case of a purported marriage of the testator which is void, was the other party to the purported marriage.

64. Schaefer v Schuhmann [1972] AC 572 at 585 (PC) (NSW). The promisee’s position is even stronger in relation to a devise or bequeath of specific property (at 586).

65. Section 16A(5) of the Wills Act 1958 (Vic) currently provides that s 16A is subject to a contrary intention. The Wills Act 1958 (Vic) will be repealed when the Wills Act 1997 (Vic) commences.

66. The first underlined word has been substituted for the word “codicil” appearing in cl 16 of the draft Wills Act 1994 (Vic). The second underlined word has been added to that provision.

67. “Will” includes a codicil: see cl 3 of the draft Wills Act 1994 (Vic) and cl 4 of the draft model wills legislation at page 25 of this Report.