Section 11 Succession Act 2006 (NSW): Revocation of Wills – A Practical Guide

Section 11 of the Succession Act 2006 (NSW) is a cornerstone provision governing the revocation of wills in New South Wales. Understanding its operation is essential for anyone advising on will-making, will revocation, or estate administration. This post provides a detailed analysis of s 11, its interaction with common law, and practical considerations.

Legislative Framework

Section 11 sets out the exclusive statutory methods by which a will, or part of a will, may be revoked. The section provides:

Section 11(1): The whole or any part of a will may be revoked:

• (a) by court order under s 16 or 18,
• (b) by operation of law under s 12 or 13,
• (c) by a later will,
• (d) by a written instrument executed with testamentary formalities,
• (e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it.

Section 11(2) further clarifies:

“No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.”

This means that, for example, a change in marital status or the birth of a child does not, of itself, revoke a will unless the Act expressly provides otherwise such as S12 of the Succession Act 2006 (NSW) whereby marriage revokes a Will and S13 which deals with the effect of divorce or annulment of a marriage.

Key Principles and Practical Issues

1. Revocation by Later Will or Codicil

A later will that contains an express revocation clause will generally revoke all prior wills. However, if the later will only revokes previous wills in respect of certain assets, the earlier will may remain operative for the balance, provided there is no inconsistency (Estate of Francis Collins [2000] NSWSC 407).

Where there is no express revocation clause, the question of revocation is determined by inconsistency. The common law, as affirmed in Lemage v Goodban (1865) LR 1 P & D 57, holds that a later will revokes an earlier will only to the extent of inconsistency. If there is no inconsistency, then both documents may operate together.

2. Revocation by Destruction

Physical destruction (burning, tearing, etc.) must be accompanied by the intention to revoke. Accidental destruction does not revoke a will.

3. Revocation by Operation of Law

Sections 12 and 13 provide for revocation in specific circumstances, such as marriage or divorce, but only to the extent specified in those sections. Section 11(2) makes clear that there is no general presumption of revocation just because of a change in circumstances.

4. Revocation by Written Instrument

A will may be revoked by a written instrument executed in accordance with the formalities required for a will (see s 6). This allows for a standalone revocation document, so long as it complies with the same requirements of executing a valid will.

5. Court-Ordered Revocation

Sections 16 and 18 allow the Supreme Court of NSW to make orders revoking a will in certain circumstances, such as family provision proceedings.

Common Law and Probate Practice

The leading authority on the operation of multiple testamentary documents is Lemage v Goodban (1865) LR 1 P & D. The courts can therefore construe multiple documents together, and only revoke to the extent of inconsistency.

In practice, executors may seek probate of multiple documents (e.g., a will and codicil), provided the testator’s intentions are clear and the documents are duly executed or admitted as informal wills under s 8.

Practical Tips

• Always include an express revocation clause in new wills to avoid ambiguity.
• Be aware of the effect of marriage or divorce on a previous will, as these events may partially revoke a will by operation of law.
• Ensure proper execution of any revocation instrument or new will.
• Document that you have destroyed a Will and retain clear records.
• Be alert to the risk of intestacy if a will is revoked without a new will being made.
• To avoid litigation, keep evidence of the intention and the circumstances of any destruction or revocation.

Recent Case Law

• Slack v Rogan & Anor; Palffy v Rogan & Anor [2013] NSWSC 522: The court considered whether a prior will could be revived by an informal document expressing an intention to revive, even if not executed in accordance with s 6, provided the requirements of s 8 and s 15 are met.
• Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253: Discusses testamentary capacity and the importance of clear evidence of intention in will-making and revocation.

Conclusion

Section 11 of the Succession Act 2006 (NSW) provides a comprehensive and exclusive regime for the revocation of wills. Careful attention to the statutory requirements and the testator’s intentions is essential to ensure the validity of revocation and to avoid unintended intestacy or litigation.

Contact us for a free thirty-minute consultation with an Estate Planning Lawyer. 

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by Sora Shimazaki