Judge slams old boy who sued mother over estate

Judge slams old boy who sued mother over estate

Illustration by: John Shakespeare.

An old boy from The King’s School who sued his mother for a share of his grandfather’s $5.5 million estate has been castigated by a Supreme Court judge for having a ”highly developed and unhealthy sense of entitlement”.

Robert Wilcox, 46, and his younger brother Benjamin sued their mother Patricia after their late grandfather left his rural estate to their mother.

Benjamin settled his case but Robert’s claim proceeded to a hearing in February.

In a scathing judgment, Justice Michael Pembroke said that Robert was an ”unimpressive witness” whose ”unhealthy sense of entitlement may have constrained his ambition” to achieve financial success.

”Like many an expectant heir before him, he has not made the most of his opportunities, imprudently assuming that he and his brother would inherit their grandfather’s estate,” he said.

Robert had been given a ”better start than most young men could have expected” and his tuition and boarding at The King’s School had been paid by his grandfather.

The court heard Robert had been self-employed since about 2001 and was living in shared accommodation at Darling Point. At a hearing in 2012 he said he was living in a garage, sleeping in a swag and had virtually no assets.

Justice Pembroke said that ”no one is responsible for the position in which Robert Wilcox now finds himself, except himself” and he doubted he was ”sufficiently motivated to find work”.

The grandfather left his estate to his only daughter in the expectation that her sons would inherit it when she died. “Unfortunately, instead of waiting for events to run their natural course, the sons sued their mother … resulting in unquantifiable family discord, substantial cost and considerable hardship,” Justice Pembroke said.

“Unfortunately, instead of waiting for events to run their natural course, the sons sued their mother … resulting in unquantifiable family discord, substantial cost and considerable hardship”

In an earlier judgment, he noted the sons “not only claimed everything from the [grandfather’s] estate, but had given virtually no consideration to what should happen to their mother”, who had lived on the land all her life.

Affronted by the court case, she cut both sons from her will but she later relented for Benjamin.

Robert gave evidence he could get work in the mining industry but would be “lucky to earn $100,000 net”, whereas he could make up to $2.5 million a year running the family agricultural business.

Justice Pembroke said there was “no adequate evidence” that Robert had tried to get work in the mining industry and he ‘‘had a wholly unrealistic belief’’ he could run an agricultural property.

He had “had no involvement with agriculture whatsoever since 2001” and had not “set foot” on his grandfather’s property, Allawa, since 2004. His grandfather died in January 2010.

Justice Pembroke found Robert was entitled to receive some money under state succession laws. He rejected Robert’s claim for $1.1 million but ordered he be paid $107,000 to clear a tax debt and seven annual instalments of $40,000 starting in 2016.

Will Family Law change under a Coalition Government?

pm-tony-abbot-will-family-law-changeMembers of the Federal Parliament and their staff from all political parties will tell you that they receive numerous queries and complaints about family law matters, and in particular about the operation of the child support system, from those in their electorates.

Sometimes they are subjected to targeted lobbying campaigns from groups representing particular perspectives on those issues. It is interesting, then that the Coalition did not, as far as I have been able to discover, release a policy directly about the Family Law Act or the child support system in the lead up to the election. It may be that this area is too much of a “hot potato” and this in turn may (or may not) mean that further reforms in this area are unlikely under the new Government.

To some extent the “noise” from electorates might simply reflect the fact that family law issues touch many individuals’ lives deeply and daily. But, in my view, there is a lot more to it than that. While it might not at first appear to be the case, family law is highly political. By this I mean that it deals with and touches upon some of the deepest value issues in our society, on which one might expect political parties to express a view (and indeed, to have a policy).

For example:

• What should be the relative responsibilities of the State and the family for the financial support of those who are unable to fend for themselves?

• To what extent should the State proscribe and prescribe behaviour within families, and how?

• What sorts of relationships should create obligations between those who are in them, and of what kind?

• What sorts of relationships should the State promote and support?

• Is healthy and involved parenting something the State can legislate for?

• What role should the State play in protecting victims of family violence, or people (including children) who are otherwise vulnerable?

These political issues are framed by differences on more empirical (factual) questions. In the area of family violence and parenting, these questions include ones such as:

• How widespread is family violence, and how significant are its effects?

• How gendered is family violence?

• How common are false allegations of family violence and sexual abuse?

• Is an ongoing relationship with a violent parent better than no relationship? In what circumstances?

The most controversial amendments to the Family Law Act over the years since it was enacted have been those which deal with decision making about parenting. These have been marked by (often gendered) debates about what the legislation should say about the relative significance of experiences of family violence in family relationships and the promotion of relationships with both parents after separation. In general, women’s groups have argued for prioritising the former, and men’s groups for prioritising the latter.

Perhaps the most significant amendments to the parenting provisions were introduced by the Howard Government in 2006. While these also gave some new priority to issues of family violence, they are generally seen as at least having had the effect of prioritising relationships with both parents after separation over the significance of family violence to decision making about parenting.

Among other things, they introduced the presumption of equal shared parental responsibility, and drew decision makers’ attention to whether equal time arrangements were in the best interests of children and reasonably practicable, while also requiring attention to be paid to the extent to which one parent facilitated a relationship with the other parent. These reforms have been described as the “shared care reforms”.

Following a number of reports, including the very influential Chisholm Report (by former Family Court Judge, Richard Chisholm), these amendments were wound back to some extent in 2012 by the Gillard Government (the “family violence reforms”); the Family Law Act now makes clear that priority in decision making about parenting is to be given to protection from family violence. These reforms did not go as far as some (and indeed Chisholm) advocated; in particular most of the “shared care reforms” remained intact. Some speculated that there may have been further reforms from a Labor Government had one been re-elected, although no such public position was taken by the former Government.

It is not clear as yet what difference the family violence reforms have made to decision making about parenting. Perhaps in part because of the lack of evidence about any real difference, it is also not clear from any public paper that I have seen whether the Abbott Government is likely to have further amendments to the parenting provisions on the agenda. If they were to do so, my expectations would be that there would be a winding back of the significance attached to family violence in the parenting provisions.

The Coalition’s Policy for Women dated September 2013 has little to say about family violence, although it is pleasing that it commits to ensuring the implementation and resourcing of the “National Plan to Reduce Violence against Women and their Children.” Its two other specific commitments are increasing the funding to the White Ribbon campaign by $1 million over four years (that is, $250,000 a year), and strengthened support services for overseas spouses (who can be among the most vulnerable victims of domestic violence). It is notable that the Policy states that “Domestic Violence and sexual assault perpetrated against women costs the nation $13.6 billion each year.”

Of course it is not just policies dealing specifically with family law which have an impact in that area. The Coalition’s paid parental leave policy, providing for mothers to have six months’ leave based on their actual wage, or the national minimum wage (whichever is the greater), has the potential to have profound impacts on women’s workforce participation. This in turn may create less financial inequality between spouses if and when they separate. It is those inequalities which the family law system struggles to address.

Whether or not there are amendments to the Family Law Act or to the child support system under the new Federal Government it may be that the most critical issue will be the extent of funding within “the system”, including the relevant Courts. Few would argue that if, for example, the complex issues of family violence in parenting disputes are to be properly dealt with, “the system” needs to be better resourced. In the legal context this means more funding for legal aid, more judges with less crowded lists, and more experts and processes available at Court to all regardless of means. It remains to be seen what priority will be given to funding in these areas under the new Federal Government.

Vexatious Litigant: The Man Who Sued Too Much


Mohammad Tabibar Rahman

HE is the man who sues too much — taking on everyone from government departments to private companies, a university and even his own lawyers.

Now, after 50 cases in just 10 years, science teacher has been banned from taking anyone else to court after Justice Michael Adams ruled he was a vexatious litigant who has used the judicial system to “harass, annoy or achieve another wrongful purpose”.

Mr Rahman, a Bangladeshi immigrant, is the 12th person to be put on the State’s vexatious litigant register, meaning he cannot start legal proceedings without first seeking the courts’ consent.

“This is a crime against humanity, I will take them to the International Criminal Court if I have to.”Mohammed Tabibar Rahman

But not one to let an unfavourable legal decision stand in his way, he plans to go to court one more time — this time to have his ban overturned.

A defiant Mr Rahman said: “This is a crime against humanity, I will take them to the International Criminal Court if I have to.”

Mr Rahman’s legal battles began when he failed an English exam to allow him to teach in NSW in 2001. When his complaint of racial bias was rejected by the Anti-Discrimination Board, Mr Rahman began legal proceedings.

Since then he has commenced numerous cases in NSW courts and tribunals, the Federal Court, and appealed to the High Court.

“He has persistently undertaken proceedings which were bound to be futile as they had no proper basis either in law and fact and, to bolster his cases, has resorted to allegations of corruption, bias and incompetence.”Justice Adams

He has taken legal action over social security payments, speeding tickets, a failed job interview with the Department of Immigration and his 12-month suspension from studying law at the University of Technology.

On one occasion he even took his legal team to court to challenge them over their bill — and ended up paying even more.

Mr Rahman, who blames his epic losses on a “corrupt” and “racist” judicial system, is paying a high price for his doomed legal battles.

With estimates that his litigious excursions have cost anywhere between $500,000 and $1 million, his bank account has been stripped of $57,000 and his two homes at Holsworthy, valued at about $980,000, are now at risk.

This month Justice Adams ruled that Mr Rahman continuously attempted to re-litigate issues that had previously been determined.

“He has persistently undertaken proceedings which were bound to be futile as they had no proper basis either in law and fact and, to bolster his cases, has resorted to allegations of corruption, bias and incompetence,’’ Justice Adams found.

“He is unable, or unwilling, to accept that any view other than that for which he contends can be correct and has continually attempted to bypass adverse decisions by commencing fresh proceedings dealing with the same issue.”

Mr Rahman rejected Justice Adams decision. He said: “I am not wrong, they are doing the wrong thing, they are not following the right procedure.”

Attorney General Greg Smith said declaring someone a vexatious litigant was a last resort against those who abused the courts.

“Taxpayers cannot be expected to foot the bill for the private and never-ending court battles of malicious, vindictive, unreasonable individuals,’’ Mr Smith said.

With estimates that his litigious excursions have cost anywhere between $500,000 and $1 million, his bank account has been stripped of $57,000 and his two homes at Holsworthy, valued at about $980,000, are now at risk.

Victorian psychiatrist Grant Lester said about 50 per cent of vexatious litigants usually demonstrate a behavioural disorder described as querulousness.

In a research paper published in the scientific journal Wiley InterScience co-authored by fellow psychiatrist Paul Mullen, he wrote that they were an ongoing problem in civil and family courts.

“Those who use the courts extensively will often appear as unrepresented litigants, sometimes because they have exhausted their funds or the patience of lawyers.”

But Mr Rahman denied his obsession with litigating people was a problem.

“Do you think this is obsessive? Is it not my legal right?” he said.

One Parent’s account of Gender Dysphoria

gender dysphoriaWE are a fairly ordinary, suburban Australian family. We earn an average income. We follow the football, watch the news, help at school, enjoy our friends and family, go to the movies and love music.

When I was pregnant with our twins, I had scans regularly throughout the nine months. There were many opportunities to ask the sex of these two little floating universes.

I never asked. I didn’t mind what combination of sex I had. I didn’t care about nursery décor or what cute little outfit I would buy. We were blessed with two healthy boys, and we couldn’t have been happier or prouder.

One night, when my boys were about three years old, I was drying them both off after bath time. Bill was chatting away and very brightly said “mummy, I don’t want a penis, I want a vagina.”

We had taught the boys the proper names for parts of the human body, but I just blinked at him thinking I had misheard. He looked back at me. “But Bill, you have a penis. You’re a boy,” I said.

He finished drying off and life went on. But that was the first moment I made a connection that something might be different about our Bill. It feels so awkward to refer to Kate as Bill, and as “he” now. But for the purposes of this story, I will.

Bill had been into “girly things” from the beginning. We never bought him or his twin Jim, “girl stuff”, but Bill would turn a truck into a girl truck or a Buzz Lightyear costume into a Mira Nova costume or a towel into long hair.

He never stopped wanting to express himself as female. He went to kinder and dressed as a girl in the dress-up corner every day. He began school, had friends, wore the boy’s uniform but always played the girl in their games.

But school was really the beginning of the end for Bill. It was there he realised he was stuck as a boy. Bill began to show signs of real distress around the age of 6-7. He would say “mum, it’s so hard trying to be a boy” and “I have to go to school disguised as a boy”.

He wouldn’t use the boy’s toilet and would hold on all day. He would come home upset, angry and say, “You don’t understand. I wish I was dead.” These words hit hard when you hear them. That my beloved child should be suffering this much was shattering.

We had tried to reinforce his masculinity. But the truth is, when you have to try to convince your son he is a boy, you have a problem. We thought/hoped it was a phase that would pass in time, or that he might be gay, which was just not an issue for us.

We decided we needed to seek professional help and we found it at The Royal Children’s Hospital, Melbourne where they have a Gender Dysphoria Service. (This service is the only fully dedicated gender service for children in this country and is terribly underfunded.)

The relief for Bill was instantaneous. To be able to express his feelings openly without judgement was such a big help. As parents we were relieved as well that we were not blamed for our child experiencing this.

Bill attended a child psychiatrist for several months before we were given a formal diagnosis of Gender Identity Disorder (GID- transsexual type). It’s now called Gender Dysphoria.

While this was the diagnosis we feared the most, it was a relief to know what we were dealing with and that Bill would have the very best care available. We were referred onto an endocrinologist at the hospital.

After a couple of years of counselling and ongoing exploration of all of Bill’s options, we decided as a family that for Bill’s health and well-being it was essential we support her to affirm her identity and live as female in every aspect of her life.

To say she flourished is a totally inadequate. She was at peace and could focus on living her life with enthusiasm and ambition. She had been telling us for years that she was a girl.

It wasn’t the fancy of a confused or over-indulged child. It wasn’t that I had secretly wanted a daughter and was forcing my son into the role. It wasn’t that we were too liberal as parents and had filled the kids with weird new age notions of gender fluidity.

Yes, these were claims made against her and us at the time. We thought we had a son and now after much heartache, resistance and hard work to understand, we accepted we had a beautiful, happy, fully expressed, intelligent, wise and amazing daughter. Kate.

When Kate reached puberty, our specialists agreed with her and us that she was suitable for puberty suppressing treatment. Having never shown any signs of male identification, nor any sign or desire from Kate that she would “change her mind”, we embarked on the next big challenge.

Australia is the only country in the world where parents of children receiving treatment for GID are required by law to make an application to the Family Court of Australia on behalf of their child to gain court authority to proceed with ongoing treatment.

Our child was granted the use of puberty suppressing hormones and has avoided the development of any secondary male characteristics that would have caused her terrible distress and made her life unbearable.

The court process remains a huge obstacle to children accessing the treatment they need and supported by their parents by treating specialists. It remains that parents again have to go to court to access the second stage of the one treatment, around the age of 16.

Again, this prevents those that simply cannot afford court costs (up to $30,000) from accessing, treatment that to them is literally life-saving. Without it, many children become suicidal, self-harming, withdrawn. Hopeless.

These are the areas that I, as a parent, feel needs to be addressed as priorities for the families of children experiencing gender diversity. And they’re not the only things that need to be addressed.

Fund the Gender Dysphoria Service at Royal Children’s Hospital, Melbourne. The waiting lists are long and once a family seeks help they are usually already at crisis point and need help urgently. This is the highest priority of all.

Fund the service that is the source of real support, expertise and treatment for children with Gender Dysphoria. GPs also need to be better informed of issues surrounding gender diversity and who to refer the family/child onto.

Families require ongoing support as the journey is exhausting, challenging, conflicted, and requires constant vigilance in order to safeguard the rights and safety of the child as well as caring for the rest of the family, educating schools, family members, friends, sporting groups…the list is endless.

Grief, anger, confusion and guilt are a parent’s constant companions. Judgement/bullying by others (both inside and outside of the family) is common and causes further feelings of isolation and rejection.

Make sure schools know there is a policy for transgender and intersex children, which has to be adhered to.

Too often we hear horror stories of gender diverse children being humiliated and unsupported by school staff. Leadership is needed from the department and the principals. Some schools have shown excellent leadership and created an environment of support for everyone.

Connect parents to support networks such as Transcend: Supporting Transgender Children and their Families.

Transcend on-line can be found here.

Man Arrested for Marrying 12 Year Old Girl

Imam Muhammad Riaz Tasawara allegedly performed the marriage ceremony.

Imam allegedly performed ceremony.

A university student walked through the doors of a Sydney Centrelink office to make what he thought was a reasonable request.

The 26-year-old, who was visiting from Lebanon on a student visa, told a government worker he wanted to become the guardian of a 12-year-old girl. The girl was his “wife”.

The worker told him he would have to apply for guardianship through the Department of Family and Community Services.

He did this but his request was denied and police were called.

Child abuse detectives said the man was shocked. He believed there was nothing wrong with applying for guardianship, or having an ongoing sexual relationship with the girl because she was his wife.

Ahmad Chamma, 26, allegedly met a 12-year-old girl in the Hunter region in 2012 and became involved in an ongoing sexual relationship with her.

The pair then allegedly moved to a house in Sydney’s southwest, where they continued the relationship.

Police claim the man and child were married in an Islamic ceremony in NSW earlier this year and the girl is now 13.

He was charged with 25 counts of sexual intercourse with a child between 10 and 14 years.

The sexual assaults took place between January 1 and February 4.

Wearing a striped polo shirt and a black beard, the man made a brief appearance at Burwood Local Court and spoke via an Arabic interpreter.

NSW Community Services Minister Pru Goward said the case was brought to the attention of authorities by Centrelink.

Ms Goward said anecdotal evidence suggests forced marriages between children and adults was an ongoing issue among Sydney communities.

“This is a very secretive practice … but it is not an unknown practice,” she said.

“I understand there are actually a significant number of unlawful, unregistered marriages to underaged girls in NSW, particularly in western Sydney, southwest Sydney and the Blue Mountains.”

The father who allowed his 12-year-old daughter to be married in an illegal ceremony has been refused bail, despite him arguing the child bride was a “strong-willed woman” who was “in love”.

The 61-year-old was refused bail by a Newcastle court  on Wednesday after police charged him with accessory before the fact of sexual intercourse with a child aged 10 to 14 years and procuring a child under the age of 14 for unlawful sexual activity.

In refusing him bail, Magistrate Caleb Franklin said the facts indicated the defendant believed he had done nothing wrong, Raymond Terrace Local Court heard.

“Even if the allegations against him are proved he believes there is nothing wrong with the behaviour alleged,” Magistrate Franklin said.

“The defendant has a disregard for the laws of this state,” he said.

A Legal Aid solicitor told the court  her client denied many of the allegations made  by the police.

“He certainly denies facilitating or setting up any arrangement. She is a very, very mature and strong-willed young woman. He says they are in love and it is a very strong love.”

She also said her client was worried about his children, one of which was in tears the last time he saw them.

The solicitor also told the court her client was very well respected in the community and very well known.

Child abuse detectives arrested the 61-year-old on Tuesday afternoon after he “gave his blessing” to the illegal Islamic ceremony, which was held at his house.

It will be alleged he allowed his daughter to move to south-western Sydney with the Lebanese man she had “married”, who was visiting Australia on a student visa, police said.

The father’s arrest comes the day after Imam Muhammad Riaz Tasawara, a Muslim cleric, was charged with conducting the illegal marriage of the girl and the man, who was 14 years her senior.

The 26-year-old man who married the girl remains in custody, charged with 25 counts of sexual intercourse with a child. He was arrested last week.

It is alleged he had sexual intercourse with the victim almost every day between January 1 and February 4 this year.

A detective investigating the case said the victim’s father was “shocked” when police arrested the accused last week.

Police said the victim, who has since turned 13, is in the care of the Department of Family and Community services.

It is understood the victim was born in Australia and started wearing the hijab to school when her father converted to Islam. She now identifies herself as Muslim.

Police allege the victim met the Lebanese national at a local mosque and began a friendship.

Later, the man, who was studying at the University of Newcastle, asked the girl’s father for her hand in marriage and was allegedly granted permission.

Last week, Muslim leaders expressed their concern at the so-called marriage and the Grand Mufti of Australia, Ibrahim Abu Mohamed, said it should be “rejected and condemned from a legal and ethical perspective”.

Dr Ibrahim said the matter should be dealt with by the proper authorities as with any other crime.

Muslim Women’s Association executive officer Maha Abdo said “there is no religious leader, imam or scholar in Australia that we work with that would conduct an Islamic wedding ceremony that involved an underage child”.

Ms Abdo said they were concerned by further reports that this was a prevalent, secretive practice among Muslim communities.

“There is nothing to hide here. This sort of behaviour is against Australian law and the Muslim community does not encourage or condone such a union,” she said.

“We, as Australian Muslim women, like the rest of Australia are deeply concerned for the welfare of the young girl.”

Keysar Trad, the founder of the Islamic Friendship Society, said: “We are shocked that such things could occur in Australia. No licensed celebrant is allowed to conduct a marriage of this nature as it goes against all Islamic teachings.”

Lebanese Muslim Association president Samir Dandan said such incidents occurred within other faiths, not just Islam.

“Communities across all faiths should collaborate alongside the government to ensure such incidents do not occur in Australia.”

Childless Brides Warned to Reject Pre-Nups

prenup-signing-documentWomen embarking on a first marriage and planning to have children should not enter into a prenuptial agreement because it is likely to financially disadvantage them later, family law experts warn.

Family lawyers report demand for prenuptial agreements has plateaued in the past 18 months, and is now declining slightly, as more firms refuse to draw them up because of the risk they will be overturned by the Family Court.

Other family law specialists now charge up to $10,000 for a standard agreement to guard against the risk of a negligence claim if a prenup is successfully challenged.

International Society of Family Law president Patrick Parkinson said it would be “quite unwise” for women of childbearing age without an independent fortune to enter into a prenup. “Typically they are the ones who bear the economic risk associated with putting their career on hold [to have children] and having to organise their career around children,” Professor Parkinson said.

Other family law specialists now charge up to $10,000 for a standard agreement to guard against the risk of a negligence claim if a prenup is successfully challenged.

Armstrong Legal family law specialist Jeff Marhinin said it was difficult for lawyers to draw up an agreement that covered every contingency for what might happen in a couple’s life.

“A financial agreement is unlikely to cover a division of assets in a way that benefits [the partner who takes time out of the workforce to care for children],” said Mr Marhinin, who refuses to draw up prenuptial agreements. “It is more likely to benefit the full-time worker and financial contributor.”

Lawyers are closely watching the so-called ”pole dancer case”, which could have implications for other prenuptial agreements. A wealthy businessman is appealing to the High Court to overturn a Family Court decision to honour a prenuptial agreement that granted his ex-wife, a former pole dancer, $3.2 million.

Although there are no statistics on the number of prenuptial agreements challenged when a marriage breaks down, Professor Parkinson said the Family Court had demonstrated a “willingness to set prenups aside”.

Prenups can be overturned because they haven’t been drafted properly, they were signed under duress, one partner did not fully disclose their financial assets, or there has been a significant change in the couple’s circumstances since the agreement was made.

“There are ever-expanding grounds to challenge them and get them set aside,” Mr Marhinin said. “They’re becoming more unsafe and people need to enter into them with real caution because of the uncertainty into the future.”

Lawyers said prenuptial agreements can be useful for couples entering their second or third marriages, who may have existing children to provide for, and those with independent assets. Prenups are also warranted when one partner has more wealth.

York Family Law principal Nabil Wahhab said there were “loads of problems” with prenuptial agreements, which had become the subject of “plenty of litigation”.

“There are more and more cases coming up [in court],” Mr Wahhab said. “You can never cover every single scenario people are going to have in their lives.”

How to revoke your Will

revocation-of-a-WillRevoking a will means that the will is no longer valid. When someone dies, the most recent will (if executed correctly and unrevoked) determines how their estate is controlled. If that person dies with a revoked will, and a new will has not been made or an old will has not been revived, that person will die intestate (without a will).

One of the fundamental characteristics of a will is that it may always be revoked. Revocation may either be voluntary or by operation of law.

A will may be revoked voluntarily by:

  • another will or codicil (executed according to the requirements of making a will);
  • a declaration in writing of an intention to revoke (executed according to the requirements of making a will); or
  • destruction of the will.

In the case of voluntary revocation, it must also be shown that the testator had the necessary capacity to revoke the will and did so with the intention to revoke.

A will may be revoked by operation of law by:

  • marriage;
  • divorce.

Revocation by operation of law does not require an intention to revoke.

The five methods of revocation:

  1. Revocation by another will or codicil

Most wills have a clause revoking prior wills, such as “I revoke all former testamentary dispositions”. On the other hand, expressions such as “last will” and “last and only will” do not properly express an intention to revoke previous wills.

When a testator revokes a will with the intention of creating another will, the revocation of the former will is conditional upon the latter will coming into effect. If the latter will does not come into effect, the former will remains in force.

Where there are inconsistent testamentary instruments, in certain circumstances the court may revoke only part of the first instrument, so that the instruments can be read together. However, where wills are very similar but distribute the testator’s estate differently, the second will is taken to revoke the first will.

  1. Revocation by declaration in writing

Any writing declaring an intention to revoke a will is sufficient, provided that the declaration is executed in accordance with the same formalities required for the making of a will.

  1. Revocation by destruction

To revoke by destruction, the testator must intend to destroy the will, and actually do so. While the will need not be totally destroyed to be revoked, a mere effort (such as crossing through the will) is insufficient. Destruction needs to be something more substantial, such as obliterating an important part (or parts) of the will so that it becomes illegible. It is still possible, however for a will to be only partially revoked by destruction, leaving the balance effective.

If the testator wishes to destroy the will but the destruction of the will is not carried out by that testator, it must be destroyed by another person in the testator’s presence at the testator’s discretion. A will destroyed by accident or mistake is not revoked (as the testator did not have the necessary intention to revoke that will).

Where a testator’s last will cannot be found, it is presumed that the testator has destroyed it. However, to be able to rely on this will, you must prove:

  • that there was a will;
  • that it revoked all previous wills;
  • that it has not been destroyed;
  • the terms of the will; and
  • that it was correctly executed.
  1. Revocation by marriage

A will is revoked by the marriage of the testator, irrespective of the testator’s intention. If the testator does not make a new will after marriage, the rules relating to intestacy will apply. There are, however, exceptions to this rule including, for example, if a will was made in contemplation of marriage.

  1. Revocation by divorce

A will is revoked by the ending of a marriage on or after 9 February 2008, except where there is evidence establishing an intention for this not to happen (such as including a statement to this effect in the will).