Did you know that wills can be revived or republished? Here’s what you need to know about both topics.
Revival
First and foremost, s16(1) of the Wills Act 1959 (“WA”) states that no will that has been revoked can be revived unless by re-execution or by a codicil executed in the way required. The testator reviving the will also needs to show their intention to revive it.
Based on this section, it is thus clear that there are 2 methods to revive a will. Namely, via re-execution or via a duly executed codicil
Next, s16(2) WA states when any will which has been partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary be shown.
As such, the revival of a will does not mean the will as a whole will be revived.
Besides, s30(2) WA states that a will re-executed, re-published or revived by a codicil shall be deemed to have been made at the time when it was so re-executed, re-published or revived.
It should be noted that according to Rogers v Goodenough, a will that has been destroyed cannot be revived. Moreover, testators should also note that the formalities in s5 WA should be complied to when re-executing the will. The will must thus be signed by the testator or someone in his presence and direction and attested or signed by the witnesses.
Knowing this, the requirements to revive a will are as follows:
a) Revival of a will can only be done if there is a revocation. This means that revocation must first be established and fulfilled prior to revival.
b) Clear intention to revive wills (as per s16(1) WA):
- Re-execution of a revoked will shows the intention of the testator. If the will is revived by a codicil, intention must appear on the codicil.
- Re Steele: the legislature meant that the intention should appear on the face of the codicil, either by express words saying to revive the revoked will, or by disposition of the testator’s property inconsistent with any other intention.
- In the Goods of Davis: the codicil showed the intention of the testator to revive the will. Hence, revival was admitted.
Republication
Republication is the confirmation of a valid existing will, giving it a new starting date. There are two methods of republication of a will namely the will is duly re-executed, or it must be referred to in a subsequent codicil.
Re-execution of a will must conform to the requirements of s5 WA and must have been intended to be a re-execution. S30(2) WA mentions that a will re-executed, re-published or revived by a codicil is deemed to have been made at the time it was re-executed, re-published or revived. Hence, a republished will is deemed to have been made at the time of republication.
As for republication by codicil, a duly executed codicil which refers to an earlier will republishes that will as long as the testator intended to republish. For example, in Re JC Taylor, a codicil which described itself as ‘codicil to my will’ was held to be sufficient to republish the will. In Hawkins v Perpetual Trustee Co, it was held that republication confirms the will such that the will and codicil are read together as one document.
It should be noted that once the will is revoked, the will cannot be republished but must be revived as seen in Fairweather v Fairweather. In addition, republication of a will can only be done during the lifetime of the testator.
