Revocation, alteration, revival

Chp 7 textbook

revival revives a revoked will or codicil, whereas a confirmation (or republication)  confirms an unrevoked will or codicil.

Revival
1. s.22 1837 -
i) by its re-execution with the proper formalities.
ii) by a duly executed codicil showing an intention to revive it.

Rogers v Goodenough - once a will is destroyed it cannot be revived.
In the goods of Hodgkinson - W1 to X, W2 realty to Y, destroyed W2. Held: as regard TOR's realty, W1 was not revived by the revocation of W2. So, personalty to X, but realty  passed on intestacy

In the goods of Davis - Will "all estate to Ethel". TOR then married Ethel, thus revoke the will. Later he put on the enveloped containing the will "the herein named Ethel is now my wedded wife", and this writing was signed and attested. Held: writing on the envelope was a codicil showing TOR's intention to revive the will.

W1 dated 1 Jan 2003
W2 dated 30 June 2007 and expressly revoked all former wills
Codicil "to my will dated 1 Jan 2003"
TOR dies
In the goods of May - the reference in the codicil to the date of W1 does not show an intention to revive it.
In the goods of Whatman -the description of the will by the codicil is ambiguous - W1 is not TOR's will at all, because it has been revoked.
In the goods of Stedham - but if the codicil not only refers to W1 by date, but also refers to the provisions, the codil shows an intention to revive it.

Effects of revival
s.34 1837 - a revived will is deemed to have been made at the time of its revival. A revived will operates as if it had been executed at that time.

s.22: if a will or codicil is firstly partly revoked, then later wholly revoked, revival does not extend to the part first revoked unless contrary intention.

Neate v Pickard - revival may validate an unattested alteration made to the will before its revival.
Revival may also incorporate a document which came into existence prior to its revival, but which was not in existence when the will was first executed.

Confirmation (republication: old naming)
i) re-execution with proper formalities (Dunn v Dunn)
ii) duly executed codicil containing some reference to it (Re Smith)

s.34 1837 - a confirmed will operates as if it has been executed at the time of its confirmation.

In the Goods of Rawlins -



Alteration
s.21 if the alteration is duly executed with the formalities required for the execution of the will, the alteration is valid.
Re White - TOR did not sign on the will in 1984, he only signed in 1981. the alterations is not valid, the original will was admitted to probate.
In the Goods of Blewitt - signature of witness in margin is ok

Part of will not apparent
an alteration after execution which makes any part of the will not apparent revokes that part if the testator
Apparent or not test: optically apparent on the face of the will itself. Extrinsic evidence is not permissable to determine whether the word is apparent or not (Townley v Watson).
A word in a will is not apparent if it cannot be deciphered by any "natural" means.
Ffinch v Combe -hold up to light
In the Goods of Brasier - magnifying glass.
Forbidden methods:
In the goods of Horsford - use chemical to remove ink, remove slip of paper pasting over the word  to see the previous word
In the Goods of Itter- Infra-red photo


Intention to revoke
TOR must have intention to revoke (Townley v Watson)
accidentally spilling ink - does not revoke that part

Conditional revocation
In the Goods of Itter - T put 1000, then later obliterates 1000 and put 2000. T's intends to revoke the original amount only if the new amount is effectually substituted. T's intention to revoke is subject to a condition which is not fulfilled (unless the alteration is duly executed or A later confirms his will): accordingly the original amount is admissible to probate. 
-Court may infer from the act that his intention to revoke was conditional on the validity of the substituted amount.

In the goods of Nelson - if T intends to revoke it but not to substitute any new words, his intention to revoke is absolute. Probate must be granted with a blank space for the words "five hundred".

In the goods of Itter - Even if he later changes his mind and writes the word "nine hundred", probate must be granted with a blank space for the words "five hundred".

In the goods of McCabe - Evidence as to the TOR's declaration of intention is admissible