Revocation of Wills

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    In this month’s CPD we are going to look at ways in which a will or sections of a will can be revoked. In this paper the types of revocation we will examine are going to be confined to three basic types.

    The three types of revocation we will consider in this paper are the creation of a new will, the creation of a codicil to revoke clauses and the act of destruction of the will itself to revoke the document. Throughout the paper we will examine each in turn to ensure we understand how they work along with the consideration of practical applications to demonstrate how each type can be effective.

    The first method of revoking a will is by the creation of a new will. A testator can revoke their will in their lifetime as many times as they wish providing they are still deemed to have the mental capacity to make a fresh will. The law states that a testator must have the same mental capacity/state of mind and memory and the same degree of understanding when revoking a will as they held when making the original will i.

    In revoking a will, no matter what the reason, the preferred way of doing this is through the creation of new will document. This will ensure that there are no difficulties with the testator’s will and keeps all the testator’s wishes written into one document, rather then spreading the testators wishes over a number of documents, as in the case of codicils (we will be considering codicils and there use later in this paper).

    The act of creating a new will, will always have the impact of making any older wills invalid as in most cases the opening clause under the name of the testator will say something like the following:- ‘I REVOKE all earlier Wills and Testamentary dispositions and declare this to be my Last Will and Testament “My Will’.

    The above clause within a will document has the effect that any document created after an older will having been signed and dated appropriately, will supersede the older document.

    This is supported under the Wills Act 1837 ii which states:- ‘No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil’.

    Therefore, the most effective way of revoking a will is to make a new will which contains all the relevant changes and revokes any outstanding documents. The important element, as mentioned earlier in this article, is that any testator must still have the same mental capacity as they did when they created the original will.

    The revocation clause is an express statement which shows the intention of the testator and therefore it is very important that these clauses are drafted correctly as was seen in the case of Lowthorpe-Lutwidge v Lowthorpe-Lutwidge iii. The issue in Lowthorpe-Lutwidge v Lowthorpe-Lutwidge was whether the testator had successfully revoked a former will as the revocation clause stated in the will ‘I revoke all former wills this being my last will and testament’.

    The court held that the opening words in this clause were essential in arriving at a decision as to what was the testator’s motivation. Should the opening words have simply stated ‘This is my last will and testament’ it would have failed to be sufficient for an express revocation.

    Langton, J held that the earlier dispositions were revoked because the burden of proving that the testator had intended to revoke them had been discharged due to the expression and the use of the word revoke within the express clause with in the will.

    Even if a will does not expressly revoke prior dispositions; a court can state that a will is revoked by an implied act, this can be seen by examining any inconsistencies within a will to show a desire to change the distribution of their estate. In such cases the latter will in time
    prevails as is deemed to be the last will created.

    Sometimes the whole will may be impliedly revoked by a later one, an example would be where the wills are totally inconsistent, or where the later one covers the same ground or is meant as a substitute for the earlier. The documents will be read together to ascertain the testator’s intention of what should happen upon death. This point was seen in the case of Lemage v Goodban iv, in which Wilde J stated:

    ‘The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing, duly executed according to the statue. And so this court has been in the habit of admitting to probate, such, and as many papers (all properly executed), as are necessary to effect the testator’s full wishes, and of solving the question of revocation, by considering not what papers have been superseded by the act of executing others, but what dispositions it can be collected from the language of all the papers that were designed to revoke or to retain it’.

    With regard to the principle of ‘implied revocation’ let us consider how this works by looking at cases in this area of law to see how this can actually be applied. In Dempsey v Lawson v the testator made a will in 1858 and another in 1860, each contained a number of bequests to Roman Catholic charities. The later will did not contain a revocation clause, however, it showed significant differences as a major beneficiary in the 1858 will was omitted and certain other establishments were given considerably smaller and different types of bequests. It was held by the court in this case that the 1858 will was wholly revoked since the intention of the testatrix, as shown by the creation of the of the 1860 will to revoke the older document.

    Another good example of ‘implied revocation’ can be seen in the case of Re Hawksley’s settlement vi. In this case the testatrix made a will with professional advice but later in 1927 made a home made will which did not contain a revocation clause but described itself as her ‘last will and testament’ and referred to the earlier will as the ‘cancelled will’. The provisions of the later will were wholly inconsistent with the earlier will. The court held that the phrases such as ‘last will’ and ‘cancelled will’ did not in themselves constitute express revocation, but that the earlier will was nevertheless totally ineffective because it was impliedly revoked by the 1927 will.

    The second method of revocation is through the use of a codicil as stated under section 20 of the Wills Act 1837. This section allows a clause/section of a will to be revoked and replaced either in whole or in part by a later codicil.

    The codicil needs to be drafted to show a clear intention to revoke part or all of a clause which exists in the original will. These documents are similar in style to that of a will, but they tend to be aimed at amending the will to reflect the wishes of the testator.

    Below we can see a very clear and easy example of how a codicil should be written and we begin to understand the complex nature of how these clauses need to constructed, this will ensure the codicil works effectively in revoking a section of a will (the example below being only a part of an example codicil).

    ‘I [testator] of [address] Declare this to be a codicil to my will dated the …….day of …….WHEREAS in my said will at [line] [clause]…..on page crossed out and words…..and ……. And the figure …… have been substituted by interlineations and such alterations were not executed on the said will by myself and the attesting witnesses nor referred to in the attestation clause 1. Now I HEREBY DECLARE that the said alterations were made prior to the execution of my said will and I DIRECT that my said will shall be read and construed subject to the said alterations and as if the said substituted words were the original words written in my said will.

    2. In all other words respect I CONFIRM my said will.’ In some cases the testator may only wish to revoke parts of the clauses in a will and leave the rest of the clause in the document to run. The testator may wish to only revoke a certain clause, for example the election of executors in the will.

    The reason for the change is they no longer have the same relationship with the named executors as they did before, and now they may wish to change those named and replace them with others. An example of such a codicil is set out below:-

    ‘[FULL NAME] of [HOME ADDRESS] make this [FIRST] Codicil to my Will dated [DATE].

    1. I REVOKE [OLD FRIEND] appointment as one of my Executors and Trustees and appoint [NEW FRIEND] in his place to act jointly with my other Executors and Trustees.

    2. In all other respects I confirm my Will As witness my hand this [-] day of [——] 20[–].

    The below should be signed and date and witnessed appropriately’ If a testator is making or using a codicil for the above reason it is very important that the writer of the codicil follows the requirements of such a document. In most cases it is preferred to create a new will as the codicil is a document which sits outside the will and it can be easily lost.

    Although codicils are used as a practical method of making small alterations to wills they are not seen as the best way of dealing with larger changes in the will. If the changes are more substantial then the best way of dealing with such changes is to undertake a complete rewrite of the whole will. An example would be in the revocation of a large gift in a will by the use of a codicil. This may not be best way of revoking this type of gift.

    An example in case law of the use of codicils is the rule from Doe d Hearle v Hicks vii which was applied in the case of Re Stoodley viii. In this case the testator made a will dividing the residue of his estate between the Vicar of Illminister (for church extensions) and the Society for Promoting Christian Knowledge. Two years later he made a codicil in which he referred to his will and stated ‘The residue of my estate not bequeathed by the above will I give and bequeath to Mabel Abbie Locok’.

    Mabel claimed that the codicil should be interpreted as wholly revoking the gift of residue in the will, but the court held that what passed under the codicil was such portion (if any) of the residue as might ultimately turn out not to have actually been disposed of by the will.

    The moral of this case is that the words used in the codicil were not clear enough and were seen to be too ambiguous to ascertain a clear intention.

    The third method of revoking a will is achieved by the testator who destroys their own will; again there are very strict rules as to how this is to be completed. In section 20 of the Wills Act 1837 ix lays out the rules as follows, ‘Burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same’

    The physical destruction of a will without the intention to revoke the will is not sufficient to revoke the contents of the will and, therefore, this will not revoke the will. In this event should this occur and a will is revoked by this method a copy of that will or a reconstructed
    will can be submitted to probate and will successfully be seen as valid.

    Also the simple crossing out of words or paragraphs within a will is not sufficient to create revocation of a will. In the case of Cheese v Lovejoy (1876-77) x the testator wrote across the will stating ‘all these are cancelled’ and then crossed parts of the will out and the testator then went on to throw the will away. A servant later found the document and preserved it for his master and it was produced on the testator’s death and was held to be valid. The court held that even though the testator had crossed out the gifts and expressed a desire to cancel the gifts, if the act of revocation is to be read in line with section 20 of the Wills Act 1837 xi, as seen above, we can see that there are very strict requirements, i.e. burning, tearing or otherwise an act with the intention to destroy the will. The court concluded the words expressing gifts where still legible and therefore the gifts in the will remained a valid as did the document.

    The act of the testator marking the will by the use of scoring out gifts to a point where they are no longer readable in a will is a concept which was revisited in the case of Re Adams xii.

    In this case the testator used a heavy ball pointed pen and crossed out the clauses he wished to revoke, ensuring that the clauses could no longer be read or even seen. The court held in this matter that it be classed under the third category of section 20 of the Wills Act 1837 xiii, that the intention was to destroy the clause as the testator’s actions amounted to more than just mere crossing out of clauses but to actually obliterating the clause so it could no longer be made out. In comparison to the Cheese v Lovejoy case, in Adams the testator had scored the writing to the point it was no-longer legible.

    Earlier in this paper we have seen examples of cases where the testator partially revokes their will. However, some acts can revoke the whole document as was seen in the case of Hobbs v Knight xiv where a testator by cutting their signature from the will and removing the attestation page, revoked the whole document.

    If the testator wishes to destroy the document then there must be a clear intention to show this was the testator’s motive. There cannot be any uncertainty that this was the testator’s intention to revoke all or part of the will and any damage done must either destroy the will as a whole or totally destroy the clause they wish to remove. It is important to remember if the testator did not intend to destroy the will and the will is destroyed, the will can still be seen to be valid.

    Also mentioned in the above act xv we can see the rules under section 20 xvi allows another person to destroy the testator’s will on the testator’s instruction or on their behalf, however, this must be done in the testator’s presence otherwise this would be seen as ineffective and therefore not seen to be a valid destruction by the testator.

    In the case of the Estate of Kremer xvii, the testator instructed her solicitor to burn her will, over the telephone. In this case the solicitor carried out the testator’s wish and burnt the will. The court held the will was not destroyed under the rules of section 20 of the Wills Act
    1837 i.e. not in testators presence and the solicitor was adjudged to have made a considerable professional error.


    Although this article does not cover all the ways a will can be revoked in either part or all of the will, we have examined the main types of revocation. It can be seen from case law how these will actually be effective and whether a will is considered to be revoked or not.

    The best way to revoke a will is to have a new will drafted and ensure the new is executed/ completed correctly. However, whoever drafts the document needs to ensure the document is drafted in a way to ensure no uncertainty exists as to which is the correct and valid will.

    i Re Sabatini (1969) 114 SJ 35
    iii Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151
    iv Lemage v Goodban (1865) 1 P & D 57
    v Dempsey v Lawson (1877) 2 PD 98
    vi Re Hawksley’s settlement [1934] Ch 384
    vii Doe d Hearle v Hicks (1832) 1C1 & Fin 20; 6 ER 823
    viii Re Stoodley [1915] 2 Ch 295
    x Cheese v Lovejoy (No 2); sub nom. Harris (Deceased), Re 91876-77) L.R. 2 P.D 251 [1876 H. 16.] CA
    xii Adams (Deceased), Re [1990] Ch.601; [1990] 2 W.T.L.R. 931
    xiv Hobbs v Knight, 163 E.R. 267; (1838) 1 Curt. 768 KB
    xvii In the Estate of Kremer (1965) 110 SJ 18

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