Can Revoking a Current Will Automatically Reinstate a Previous Will?

The recent case of Re Allan (Dec’d) [2024] QSC 277 highlights the potentially devastating consequences that can arise when a person attempts to revoke and reinstate their Will without obtaining proper legal advice.

How can I revoke a Will?

In Queensland there are several ways in which a person can revoke an existing Will. The most common way for a Will to be revoked is by the Will maker either executing a new Will (which usually includes a clause that expressly states that the Will maker revokes all past Wills and testamentary dispositions) or by executing a document (in the same manner required for a Will to be validly executed) that declares the Will maker’s intention to revoke their Will. Wills can, however, also be revoked automatically by law or physically by a Will maker.

Automatic revocation by law

Certain life events can legally cause a Will to be either partially or completely revoked. These life events include the following:

• When a person gets married or enters into a civil partnership their existing Will is automatically revoked (unless it was made in contemplation of entering into that specific marriage/civil partnership).
• When a person goes through a divorce, annulment, the termination of a civil partnership or ends a de facto relationship their Will is partially revoked (unless it was made in contemplation of the dissolution of such relationship) – in that the appointment of the former spouse as executor is revoked and any gifts in favour of the former spouse are revoked.

Physical revocation by the Will maker

A Will can be physically revoked by a Will maker (or a person in the Will maker’s presence acting in accordance with the Will maker’s direction) by either:

• burning, tearing or otherwise destroying the Will (it being the intention of the Will maker to revoke the document); or
• writing on the Will, or dealing with it in a way that shows (to the satisfaction of the court) that the Will maker intended for the Will to be revoked.

Revival of a Revoked Will

Once a Will has been revoked it can only be revived by either:

• re-executing the original revoked Will; or
• preparing a new Will that shows an intention to revive the revoked Will.

A mere intention to revive a revoked Will is not sufficient.

Case Study: Re Allan (Dec’d) [2024] QSC 277

Joanne and Mark were a married couple with two children. In 1997 Joanne and Mark prepared and executed Wills (“the 1997 Wills”). Pursuant to the 1997 Wills, they each left their entire estate to each other and appointed Joanne’s parents and Mark’s parents as the joint guardians of their children.

In 2003 Joanne and Mark prepared and executed new Wills (“the 2003 Wills”) that expressly revoked the 1997 Wills. The terms of the 2003 Wills were similar to the terms of the 1997 Wills, with the only exception being that only Mark’s parents were nominated as the guardians of their children.

In 2009 Joanne and Mark collected the 2003 Wills from their solicitor’s office. Two months after the 2003 Wills were collected Joanne passed away. Mark gave evidence confirming that after the 2003 Wills had been retrieved, he and Joanne destroyed the 2003 Wills with the intention of revoking them. Mark further explained that it was their belief that the 1997 Wills would be reinstated as a result of the 2003 Wills being revoked.

In 2020 Mark unsuccessfully attempted to obtain a Grant of Letters of Administration based on a copy of the 1997 Will (as the original 1997 Will could not be located). It was ultimately determined by the Court that Joanne had died intestate (meaning without a valid Will) as the 1997 Will had been revoked by the execution of the 2003 Will, and the revocation of the 2003 Will did not revive the 1997 Will.

When a person dies without a Will they lose the ability to decide who receives their assets, and instead their assets will be distributed in accordance with rules set out in legislation, which may not be consistent with what their wishes were.

This case highlights the importance of seeking legal advice, not only when your estate planning documents are first prepared, but at any time you wish to alter, revoke, reinstate or otherwise change your estate planning documents. The costs associated with attempting to rectify mistakes in a person’s estate plan after they have died can be significant, and in many circumstances it may not be possible for the mistakes to be fixed, resulting in a person’s estate being required by law to be dealt with in a manner that may go against their wishes.

We Can Assist You

Our experienced solicitors can provide you with assistance regarding all legal aspects of the estate planning process. Please do not hesitate to contact one of our experienced solicitors on (07) 4963 2000 or via the link below if you require assistance with preparing your Will or any other aspect of your estate plan.