Revocation
Read – mainly for interest only
Revocation by marriage
Revocation by will, codicil or ‘some writing’
Revocation by destruction
Conditional revocation
Alterations
Republication and revival
Introduction
Revocation is the converse of making a will: it consists of the rules which determine how valid wills are made invalid, i.e. how they are unmade. The basic rules are statutory, namely sections 18 and 20 of the Wills Act 1837, but again it is the way in which the rules have been interpreted by the courts that provides the chief interest and challenge in this subject. In particular, the issue of revocation by destruction will involve you in the study of some factually vivid and bizarre decisions.
As part of this topic you will also encounter related issues: the rules concerning alterations made to a will, the question of republication – whereby a valid will is updated – and revival, whereby an invalid will is ‘resurrected’ and made operative again.
Revocation by marriage
# Borkowski, Chapter 5: ‘Revocation’, pp. 37–143.
# Kerridge, Chapter 7: ‘Revocation, alteration, revival and confirmation of
will’, pp. 123–128.
Section 18(1) of the Wills Act 1837 provides that as a general rule a will is revoked by the testator’s marriage. A void marriage, however, does not revoke prior wills, but a voidable marriage does: Re Roberts [1978] 3 All ER 225. There are two exceptions to the general rule:
Wills made in expectation of marriage
A will is not revoked by a subsequent marriage if it appears from the will that at the time it was made the testator was expecting to be married to a particular person and that he or she intended that the will should not be revoked by the marriage: s.18(3). It is not clear what ‘expecting’ means, but the use of the word ‘fiancé’ or ‘fiancée’ [Fiancé (male) / fiancée (female) (French): a person to whom one is formally engaged to be married.] will probably suffice: Re Coleman [1975] 1 All ER 675. Describing the donee as ‘my wife’ may even suffice as in Pilot v Gainfort [1931] P 103, although not in Re Gray [1963] 107 SJ 156. It is necessary, for this exception to apply, that the will shows that the testator had a particular person in mind: Sallis v Jones [1936] P
43. Note that even if s.18(3) does not apply, a disposition in a will can take effect despite the subsequent marriage: s.18(4).
Dispositions in exercise of a power of appointment
[Power of appointment - a right given to the donee by a person to confer property on persons in accordance with the terms of the power.] Section 18(2) provides that a disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testator’s subsequent marriage unless the property so appointed would pass in default of appointment to his personal
representatives. The above rules in s.18 apply to wills made after 1982. For wills made before 1983, note that under s.177 of the Law of Property Act 1925 a will expressed as being made in contemplation of marriage was not revoked by the subsequent marriage.
Question
What must be proved in order to show that a will made by a person expecting to marry was not revoked by that person’s subsequent marriage?
1 A void marriage is one that will be regarded by every court in any case in which the existence of marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of
competent jurisdiction.’ (Lord Greene M.R. in De Reneville v De Renneville [1948] p. 11, III.)
Summary
A will is revoked by the subsequent marriage of the testator subject to the exceptions in ss.18(2)–(4) of the Wills Act 1837. A testator may revoke a will or codicil wholly or partially by express
words in a later will or codicil or by ‘some writing’ executed like a will: s.20 Wills Act 1837.
Revocation by another will or codicil
It is standard practice in professionally drafted wills for a revocation clause to be included, often near the beginning of the will. A typical clause might run as follows: ‘I hereby revoke all my
previous wills’. No set form of words is required but it is insufficient simply to state that the will is the testator’s ‘last’ or ‘only’ will. A revocation clause will revoke all prior testamentary dispositions – if worded to do so – but will not be operative if a contrary intention is evident: In the Estate of Wayland [1951] 2 All ER 1041. Where the clause is included without the testator’s knowledge and approval, it will not take effect, as was held in Re Phelan [1971] 3 WLR 888, but note that the clause does operate where the testator was simply mistaken as to its legal effect: Collins v Elstone [1893] P 1. Even if a will does not expressly revoke prior dispositions, it will do so impliedly to the extent of any inconsistency, i.e. the later will prevails in matters of conflict. For useful illustrations of implied revocation see Re Hawksley’s Settlement [1934] Ch 384 and Thorn v Dickens [1906] WN 54.
Note that revocation, whether express or implied, occurs when the later will is validly executed. There must, however, be evidence that the later will was executed and that it contained words which expressly or impliedly revoked prior dispositions: Re Howard [1944] P 39. If the revoking will is itself later revoked, as occurred In the Goods of Hodgkinson [1893] P 339, the originally revoked will remains revoked, i.e. if will X is revoked by will Y which itself is later revoked by will Z, then will X remains revoked – it cannot be revived by the revocation of the will which revoked it.
Revocation by ‘some writing’ A will can be revoked wholly or partially by some writing declaring
an intention to revoke, if that writing was executed in the manner required of a will: s.20. Typically, the ‘writing’ will consist of a letter written by the testator, as in the Goods of Durance [1872] 2 P&D 406. The revocation occurs when the letter is signed by the testator and witnesses as required for a will.
Summary
Under s.20 of the Wills Act 1837, wills can be revoked by another will or codicil or by some writing, declaring an intention to revoke, executed like a will.
Revocation by destruction
Essential reading
# Borkowski, Chapter 4: ‘Revocation’, pp. 149–155.
# Kerridge, Chapter 7: ‘Revocation’, pp. 128–133.
# Cases: Cheese v Lovejoy [1877] 2 PD 251; Gill v Gill [1909] P 157; Sugden
v St. Leonards [1876] 1 PD 154.
Revocation by destruction A will can be revoked ‘by burning, tearing or otherwise destroying’
the will by the testator or by some person in his presence and by his direction, with the intention of revoking the will: s.20 Wills Act 1837. In the leading case Cheese v Lovejoy [1877] 2 PD 251, it was said that ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two’.
Act of destruction
There must be an act of ‘burning, tearing, or otherwise destroying of the will, but the whole will need not be destroyed’ – it suffices if ‘the essence of the instrument’ is destroyed: Hobbs v Knight [1838] 1 Curt 768. Cutting off the testator’s or witnesses’ signatures will suffice, or erasing them as in Re Adams [1990] 2 All ER 97. The phrase ‘otherwise destroying’ must be construed eiusdem generis (see Chapter 5, section 5.3.5) with burning and tearing. Thus putting a line through a will, writing ‘all these are revoked’ and throwing away the will is insufficient, as was held in Cheese v
Lovejoy. There is some authority for the view that if the testator fails to complete what he intended to do by way of destruction, the will is not revoked: Perkes v Perkes [1820] 3 B&A 489 and Elms v
Elms [1858] 1 Sw&Tr 155. If a non-essential part of the will is destroyed, partial revocation may result providing the court can make sense of the remaining provisions: see In the Estate of Nunn
[1936] 1 All ER 555 and Re Everest [1975] 1 All ER 672. 4.3.3
The person destroying
The destruction of the will must be by the testator or some person in his presence and by his direction: s.20. In the Goods of Dadds [1857] Deane 290 held that ‘presence’ requires there to be a line of sight between the testator and the act of destruction. # In the Estate of Kremer [1965] 110 SJ 18 illustrates the need for presence in the case of a solicitor burning a client’s will in their
absence. # Gill v Gill [1909] P 157 held that failure by the testator to stop his wife from destroying his will did not amount to ‘direction’ that it should be destroyed, nor could subsequent ratification of the wife’s act amount to direction.
Animus revocandi – intention to revoke
The testator must have the intention to revoke the will, the same degree of mental capacity being required as for making a will: Re Sabatini [1969] 114 SJ 35. The intention to revoke must coincide
with the destruction of the will: Gill v Gill (above). For an illustration of failure to revoke because the destruction was effected by a ‘very drunk’ testator, see Brunt v Brunt [1873] 3 P&D 37.
Presumptions
There are two presumptions of considerable importance in practice concerning revocation by destruction.
Mutilated will
If a will is found on the testator’s death in a mutilated condition, and was known to have been in his possession prior to his death, it is presumed that it was mutilated by the testator with the intention of revoking it (wholly or partially). The presumption may be rebutted: Bell v Fothergill [1870] 2 PD 148.
Lost will
If a will cannot be found on the testator’s death, but was last known to have been in his possession, it will be presumed to have been destroyed by the testator with the intention to revoke: Sugden v St.Leonards [1876] 1 PD 154. It was held in d’Eye v Avery [2001] WTLR 227 that the presumption cannot apply if the testator’s will had never been in his possession, nor can it apply if the will had been given by the testator to someone for safe-keeping: Chana v Chana [2001] WTLR 205. The presumption may be rebutted by evidence to the contrary in which case proof will be needed of the contents of the lost will, e.g. a copy of the will. In Sugden v St. Leonards the evidence of the alleged chief beneficiary was accepted because she was an exceptionally competent and unimpeachable witness.
Explain why throwing a will into a rubbish bin does not revoke it. What is problematic about the rule that a will is not revoked if the testator did not complete what he intended to do by way of destruction? A asks his solicitor, B, to destroy A’s will. B says the he can only do that in A’s presence. A calls at B’s office whereupon B gives the will to his secretary to put through the shredding machine. She does so. What other facts do you need to know to decide whether the will has been revoked by destruction?
Question
What degree of mental capacity is required to revoke a will by destruction? What did Sugden v St. Leonards decide? Summary A will is revoked by destruction under s.20 of the Wills Act 1837 if
it was burned, torn or otherwise destroyed by the testator, or someone acting in his presence and under his direction, with the intention to revoke the will.
The basic rule is that if a testator only wishes to revoke his will conditionally, it will not be revoked unless the condition is satisfied. In some nineteenth- century cases the courts applied this rule without due consideration whether the testator had really intended a conditional revocation. The correct approach, however, was emphasised in Re Jones [1976] Ch 200: revocation will not be held to be conditional unless there is clear evidence that that is what the testator intended. Note that it is possible for a testator to have both a conditional and an absolute intention to revoke in the same instrument: Re Finnemore [1992] 1 All ER 800. The conditional revocation rule has been applied primarily in the following scenarios:
# Failure to execute another will: the testator revoked his will conditionally on executing another will, but failed to do so, as occurred in Dixon v Treasury Solicitor [1905] P 42. # Failure to execute a valid will: the testator revoked his will conditionally on executing another will, but executed it invalidly: In the Estate of Botting [1951] 2 All ER 997. # Failure to execute an effective will: the revocation was conditional on the execution of another will, but the testator executes a will which, although valid, lacks effect: In the Goods of Hope Brown [1942] P 136. # Failure to revive a will: if a testator revokes a will with the intention of reviving an earlier will, the revocation will be ineffective since a revoked will cannot be revived in this way: Powell v Powell (1866) 1 P&D 209. # Mistaken belief: where the testator revokes his will in a belief which turns out to be mistaken: In the Estate of Southerden [1925] P 177. It is arguable, however, that
mistaken belief cases are not strictly examples of conditional revocation but rather of an absolute intention to revoke. 4.6 Read Re Finnemore and explain how the court reached its decision.
A will is not revoked if the testator revokes it conditionally and the condition is not satisfied. Clear evidence is required that the testator’s intention was to revoke conditionally.
Alterations
Altering a will is not the same as revoking it, wholly or partially. However, the effect of an alteration will often have a similar consequence as that of partial revocation, i.e. the affected part fails to take effect. The rules on alterations depend on when the alteration was made.