As a general rule when a person makes a new Will, it will contain a clause revoking all previous Wills that they have made. This is commonly referred to as a revocation clause. If you have two valid Wills signed on different dates, that do not contain a revocation clause the Court will deal with your Wills, in accordance with the principles of implied revocation.
The principle of implied revocation means that, where a person’s later Will deals with the whole of their property, the Court implies that the previous Will is revoked. However, where a person’s later Will does not contain a revocation clause and is partially, or totally inconsistent with an earlier valid Will, then the earlier Will is considered to be revoked to the extent of that inconsistency.
In summary, the Court will attempt to deal with Wills not containing revocation clauses, as standing together where the later Will prevails over the earlier one, if there are any inconsistencies.
Even if your Wills do not contradict each other, having two valid Wills may increase the legal costs of administering your Estate. This is because when a person dies, it is necessary for the Executors named in the Will to make an application to the Supreme Court for a Grant of Probate, to allow for administration of the deceased’s Estate and distribution of the assets to the beneficiaries named in the Will.
If you have two valid Wills, it means that the Court will be required to determine whether there are any inconsistencies between the Wills and make a decision on whether any or all of your previous Will has been revoked.
Even if the Wills do not contradict each other, this type of Court application is expensive and the costs are generally payable from your Estate. To avoid future court proceedings, you should make one Will dealing with all of your property. This Will should contain a revocation clause so that your previous Wills are revoked, which means that there can be no issue over whether you meant this Will to be your final Will.
There are a number of procedural requirements that need to be satisfied under the Succession Act to ensure that your Will is valid, including having the Will witnessed. To ensure that your final Will satisfies the procedural requirements, you should have your Will drafted by an expert lawyer who will ensure that your Will is valid and that it will distribute your property to your beneficiaries, in the way you desire. An expert Wills Lawyer can also assist in minimising the potential for a family provision claim against your Estate.
If you need a new Will or advice on Estate Planning call Barwick Boitano today on (02) 9630 0444 or email on firstname.lastname@example.org for an appointment.
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