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WHAT IS ACCIDENTAL (IMPLIED OR TACIT) REVOCATION CONCERNING WILLS?

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The simplest method of revoking a Will is by validly executing a further Will or Codicil. A clear way of doing this is by including a revocation clause in the later Will. An example is: “I revoke all former Wills and Testamentary dispositions and declare this to be my Last Will and Testament”. This simple clause will revoke all previous Wills and Codicils.

But this clause might present problems when acquiring foreign assets in countries which don’t have testamentary freedom. Testamentary freedom, as we have in South Africa, simply means that the Testator may leave his Estate to whomever he wants to. In some countries, for example France, the principle of forced heirship applies. Under the laws of forced heirship children are prioritised above spouses.

Why should this be a problem? Well, let us assume that a South African buys a property in France. He then draws up another Last Will and Testament to leave the property in France and his properties in South Africa to his wife. But the property in France might end up going to his children, because of France’s laws of forced heirship which prioritise children above spouses.

How could this happen? Simply because the Last Will and Testament is subjected to the laws of the country where the asset is situated.

That part of the Testator’s Will is thus accidentally revoked.