Under what circumstances can a judge revoke a will?

Published 31 Jul 2018

The management of Wills after someone passes away can be complicated and frustrating to family members of the deceased. There are questions of property and financial investments that must be divided among or granted to heirs in accordance with the Will, if one exists.

But when it comes to whether or not a Will can be revoked by a judge, and what circumstances may lead to revocation, there are requirements in place that must be followed.

Revocation circumstances under the Succession Act 2006

The Succession Act 2006 states that a Will, in whole or in part, may only be revoked under certain circumstances. Among these circumstances are

  • whether or not a later Will exists,
  • whether there was a document declaring a revocation intention or
  • whether the testator or someone in the testator's presence and by his or her direction attempted to destroy or write on the Will with the intention of revoking it.

In addition, under provisions 16 and 18 of the Succession Act, the court can authorise a minor to revoke a Will or authorise a will to be revoked for a person without testamentary capacity (a person without the mental ability to alter a Will).

Marriage or divorce

Provisions 12 and 13 of the Succession Act discuss revocation circumstances in the event of a marriage or divorce. The marriage revocation guidelines, outlined in provision 12, indicate that when the person who made the Will marries, it is automatically revoked unless the Will was made in anticipation or contemplation of marriage. This applies whether or not the Will-maker had a specific marriage in mind or was just anticipating a marriage in general.

Provision 13 outlines the divorce revocation guidelines. A divorce does not automatically revoke the entire Will. A divorce will revoke any gifts within the Will that were given to the former spouse or the appointment of the former spouse as an executor, trustee, or guardian, unless a contrary intention in the Will is expressed.

Navigating the issues surrounding Wills can be difficult and time consuming. If you think you are in a situation where a Will can be revoked, or have other questions about your rights in relation to Wills, contact the lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers. Our experienced team of compensation lawyers can provide you with more information and assist you throughout the legal process.

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