Wills: Cancellation

How can a testator cancel his will?

By making a new will, or by expressly canceling it in writing or orally, in front of witnesses, or before a legal authority, or by destroying all copies of the will.

Does a newer will cancel the old?

Yes! The new will is seen as cancelling the old will even if there is no explicit cancellation , in so far as the instructions of the new will contradict those of the old one.

Can one make a new will without cancelling the previous one?

Yes! One can make a new will which adds to the previous one without cancelling it.

What is the legal position where the testator has destroyed a will?

There is a legal presumption that if the testator destroyed the will himself that he intended to cancel it. The destruction of the will must be by the testator himself for this presumption to hold.

What is the legal position if a will has got lost?

If the testator had no intention to destroy the will then the rights expressed in a lost will remain although without finding it, it cannot be enforced.

Is a declaration by way of an affidavit before a single witness that one's will is cancelled , valid?

In principle, a will should be cancelled in a similar way as it was made – i.e. if it was made before two witnesses, it should be cancelled before two witnesses, before whom the testator declares he/she is canceling the existing will . However, just as the court has discretion to declare a will valid despite faults where it has no doubt as to the true and free wishes of the testator, it can adopt a flexible approach regarding cancellation of wills, even though according to the Inheritance Law of 1965 the requirement of two witnesses is essential. In a 4-3 majority decision, an enlarged panel of 7 Supreme court judges held in March 2005 that the cancellation of mutual wills that had been made previously before witnesses by a married couple was valid even though each had signed a separate declaration cancelling his/her own will before only one witness , a lawyer. Here, respect for the deceased's wishes was shown by respecting wishes for cancellation .

Is it possible to cancel a will in ways other than those mentioned in the Inheritance Law of 1965?

No – the options stated represent a closed list.

Can a will made years ago and forgotten by the testator be 'frozen' without the testator actively cancelling it?

A court can freeze the validity of a will in certain circumstances, when it is clear to it that the testator would have cancelled it had he not forgotten about its existence, even though he did not express a desire , either explicit or implicit, to cancel it.

Can a testator destroy a will via an agent he appoints – without the destruction being in his own presence?

Yes – the act of destruction by an agent does not have to be in the testator's own presence, as the Inheritance Law of 1965 does not require this.

Can a beneficiary under a will rebut the assumption that by destroying his will the testator intended to cancel it?

Yes, he can try to do so, and could succeed, depending on the circumstances, although the Inheritance Law of 1965 does contain a rebuttable assumption that if a testator destroyed a will, he intended to cancel it.

Does the way in which a will is cancelled have to mirror the form in which it was made?

No – for example a handwritten will can be cancelled before a legal authority.

Can a will made before a legal authority be cancelled by way of a later , oral will?

Yes, providing the oral will was properly made, according to the requirements set out in the Inheritance Law of 1965.

Can a testator cancel a will he made before witnesses by way of a written will?

Yes!

Can a testator cancel a will orally, and if so, how?

Yes – according to the provisions laid down in the Inheritance Law of 1965 . He must be facing death – objectively and subjectively – and give instructions to two witnesses who understand his language that he is cancelling his will. They have to deposit a memo of this.

How can one cancel a will before a legal authority?

By appearing in person before a judge, court register , inheritance registrar or rabbinical court judge, or by submitting a declaration of cancellation of a will to one of the above. If a written declaration is filed, it is supposed to be read before the testator who has to declare to the particular legal authority to whom he submits it, that it is his document cancelling his will.

How can a handwritten will be cancelled?

The testator should state in his own handwriting that the will is cancelled. The document canceling it should bear the date and the signature of the testator, in his own handwriting.

What is the preferred way for canceling a will made before witnesses?

By way of a document canceling the will, before two witnesses, who authorize that he declared to them that he was canceling his will by way of the document, and signed it in his presence.

When does the cancellation of the will by a testator take legal effect?

Immediately upon cancellation – during the testator's lifetime.

My mother had made a will before a notary previously but later made a new one witnessed by her care-giver and another person. She even recorded her wishes on tape. Can this new "home-made" will be valid, and cancel the one before the notary?

Possibly as a testator is free to cancel a previous will and make a new one at any time. The new one will be valid if it meets the requirements of the Inheritance Law of 1965. A will made before a notary can be cancelled and replaced by a will before witnesses, providing it fulfils all the requirement of the act, the testator is of sound mind, and the will reflects his/her , true and free wishes, and there is no undue influence. Furthermore the recorded will can be regarded as a handwritten will, providing the voice can be identified.

Can the cancellation of a will made under duress or threat be cancelled?

Yes, the cancellation itself can be cancelled so that the will is in force.

What happens if the testator sold property which was intended for a beneficiary in a will?

Selling property during one's lifetime is not a way of cancelling a will according to the Inheritance Law. It deals with property during the testator's lifetime and his will deals with its fate after his death.

Does the cancellation of a will need to be made official by obtaining an order to cancel the will?

No, there is no need for this.

Can it be assumed that if the testator crossed out the will in pen he meant to destroy it?

Destruction is physical cancellation of the will at the hands of the testator himself.

Is there any limitation or restriction on a testator's right to cancel his will?

None whatsoever.

Can a testator cancel a written will by way of making an oral cancellation?

Yes! There is nothing preventing a testator cancelling a written will orally.

Can a testator cancel just part of a will, or even just one particular instruction, rather than cancelling the whole of it?

Yes, if that is what he wishes.

Is there any other way of destroying a will than physical destruction?

No – the Inheritance Act of 1965 is strict on this and demands physical destruction.

Can a testator destroy part of a will, and not all of it?

Yes! He can destroy certain pages or even certain sections, as he wishes.

What happens when a testator asks someone to destroy his will for him, but before this instruction is carried out and the will destroyed, the testator dies?

The will would be valid. When the testator dies the appointment of the agent to destroy the will ends too – so if he did not manage to complete his task before the testator's death the will remains valid.

Must the testator destroy all copies of a will for his action to be regarded as cancellation of his will?

No. Destruction of one copy is sufficient, though it is advisable to destroy all copies, insofar as this is possible.