What Does it Mean to Revoke a Will in NSW?

To revoke a will means to bring an end to the operation of that particular will. 

Legal Ways to Revoke a Will in NSW

There are many ways to revoke a will. 

In New South Wales, some of the ways a will may be revoked include:

• by a later will that contains a clause expressly revoking all earlier wills. 
• by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed. 
• by the testator physically destroying the will by burning it, tearing it up, or otherwise destroying the will with the intention of revoking it. 
• by the testator 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. 
• by the testator’s subsequent marriage.
• by the testator’s subsequent divorce.
• if the court makes a new will for an incapacitated testator (known as a ‘statutory will’).

If a person wants to revoke a will, we recommend they seek legal advice from an experienced wills and estate lawyer to ensure that the will is validly revoked. Any incorrect alteration to a will, or where a person attempts to damage or destroy a will, or where a person has intentionally destroyed the will contrary to law (such as in the case of mutual wills), then these actions can be very costly to resolve and, in some cases, have devastating consequences for beneficiaries. 

Revocation of a Will by Marriage or Divorce

In NSW, a will is partially revoked by the subsequent marriage or divorce of the testator. 

In the case of marriage, a will is revoked except for the dispositions to the spouse (or their appointment as executor), which would not be revoked if the testator remained married to the spouse as of the date of their death. The partial revocation may be avoided if the will is made in contemplation of the marriage or made in anticipation of marriage generally. 

In the case of divorce, it is the opposite, where only those dispositions to the former spouse (or their appointment as executor) automatically revoke unless a contrary intention appears in the will.

A partial revocation can result in other unintended consequences, such as partial intestacy, which could increase the risk of a family provision claim against the estate.

How to Create a New Will After Revocation

One of the most common ways to revoke a prior will is to do a new will that contains a revocation clause. 

This can ensure there is no gap between the revocation of the prior will and the commencement of a new will. 

Consulting a Lawyer for Will Drafting

Estate planning is the process of preparing legal documents that help ensure a person’s hard-earned assets go to their chosen beneficiaries. A comprehensive estate plan usually consists of at least three documents: a will, a Power of Attorney, and an Enduring Guardianship form. 

It is important to consult an expert will and estate lawyer to prepare these documents to help ensure they are valid and enforceable and give effect to your testamentary intentions.

An experienced wills and estate lawyer can help advise you of any risks in your estate plan (i.e. leaving your estate to one child to the exclusion of others), favourable tax options, and help ensure the will can withstand claims against the estate. 

Ensuring the New Will Meets Legal Requirements

There are formal requirements that must be met in order for a will to be valid.

Generally speaking, for a will to be valid, it must be signed and witnessed by two witnesses. However, as the laws in relation to wills are different in each state, it’s important to engage a solicitor who is familiar with the laws in the relevant state to ensure the new will is executed in accordance with legal formalities, is legally valid, and is legally binding. 

Naming Executors and Beneficiaries in the New Will

When preparing a new will, you will have the ability to name executors and beneficiaries. These can be the same as or different from any prior wills. 

If you are looking to prepare a new will, we recommend you seek professional legal assistance to ensure the will is drafted in terms that are unambiguous and that operate in a range of circumstances and help you execute the will in accordance with the requirements of the particular jurisdiction. 

Storing the New Will Safely

After executing a new will, we recommend you store the original documents in a secure location (such as with a solicitor, the NSW Trustee of Guardian, or the Supreme Court). 

You may also wish to provide a photocopy of the will to your executor or select loved ones to ensure its existence is known, although you are not obliged to and can keep the will secret if you choose. 

Steps to Ensure a Will is Properly Revoked

If you are looking to revoke an existing will and prepare a new will, we recommend you contact us so we can help ensure that you comply with the laws and regulations that apply in your jurisdiction. 

The safest way to revoke a will is to prepare and validly execute a new will that contains a revocation clause. A revocation clause revokes all previous wills. This will ensure an immediate operation from the old will to the new will. If you were to revoke a previous will without doing a new will, you run the risk of dying without a will (known as dying intestate), resulting in your estate being distributed according to intestacy laws, which may be different from your wishes. 

Destroying the Old Will

Once a new will has been formally signed, the testator may at that point proceed with destroying the prior will. However, you do not necessarily need to physically burn or tear up the will; depending on the jurisdiction, it may be preferable to physically write on the revoked will words to the following effect, “This will was revoked on [date] and replaced by a will dated [date],” which shows a clear intent to revoke. 

Creating a Revocation Clause in the New Will

As a matter of practice, a new will contains a clause revoking all prior wills. This helps to make it clear that the testator wanted all prior wills revoked and replaced with the new will. 

Notifying Relevant Parties of the Revocation

A person who has revoked a prior will (regardless of whether they have prepared a new will to replace it) can, but does not have to, inform anyone they choose about the revocation. Alternatively, they can keep it secret. 

Avoiding Ambiguities in the Revocation Process

The revocation of a will can have significant consequences for the distribution of an estate and the happiness of the beneficiaries, and this is why it is important to engage an experienced wills and estate lawyer to ensure you satisfy any formal requirements in relation to revocation and, similarly, formal requirements that apply to the preparation and execution of new wills. 

Seeking Legal Advice for Revoking a Will in NSW

If you would like help to revoke your will because your circumstances change, or if you have been appointed as executor and would like to apply for probate, contact Empower Wills and Estate Lawyers in Sydney, NSW now on 1300 414 844 to discuss your situation with a solicitor from our team of experts.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.