Course Title: Law of Succession Topic: Methods of revocation of wills.

Section 18(1) of the Wills Act 1837 provides that as a general rule a will is revoked by the testators marriage. Re Roberts [1978] 3 All ER 225: A void marriage, however, does not revoke prior wills, but a voidable marriage does.

De Reneville v De Renneville [1948] p.11, III. (Lord Greene M.R.): 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.

There are two exceptions to the general rule: i. 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). Re Coleman [1975] 1 All ER 675: It is not clear what expecting means, but the use of the word fianc or fiance will probably suffice.

Pilot v Gainfort [1931] P 103 Describing the donee as my wife may even suffice. Although not in Re Gray [1963] 107 SJ 156.

Sallis v Jones [1936] P 43: It is necessary, for this exception to apply, that the will shows that the testator had a particular person in mind. ii. Dispositions in exercise of a power of appointment Section 18(2) provides that a disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testators subsequent marriage unless the property so appointed would pass in default of appointment to his personal representatives. Power of appointment is a right given to the donee by a person to confer property on persons in accordance with the terms of the power.

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. In the Estate of Wayland [1951] 2 All ER 1041: No set form of words is required but it is insufficient simply to state that the will is the testators 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.

Re Phelan [1971] 3 WLR 888: Where the clause is included without the testators knowledge and approval, it will not take effect. Collins v Elstone [1893] P 1: the clause does operate where the testator was simply mistaken as to its legal effect. 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. Re Hawksleys Settlement [1934] Ch 384: For useful illustrations of implied revocation. Revocation, whether express or implied, occurs when the later will is validly executed. 2

Re Howard [1944] P 39: There must, however, be evidence that the later will was executed and that it contained words which expressly or impliedly revoked prior dispositions.

In the Goods of Hodgkinson [1893] P 339: If the revoking will is itself later revoked, 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. In the Goods of Durance [1872] 2 P&D 406: Typically, the writing will consist of a letter written by the testator. The revocation occurs when the letter is signed by the testator and witnesses as required for a will.

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. Cheese v Lovejoy [1877] 2 PD 251: This is a leading case in which 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 Hobbs v Knight [1838] 1 Curt 768: 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. Re Adams [1990] 2 All ER 97: Cutting off the testators or witnesses signatures will suffice, or erasing them. 3

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. Perkes v Perkes [1820] 3 B&A 489 and Elms v Elms [1858] 1 Sw&Tr 155: If the testator fails to complete what he intended to do by way of destruction, the will is not revoked.

In the Estate of Nunn [1936] 1 All ER 555 and Re Everest [1975] 1 All ER 672: If a non-essential part of the will is destroyed, partial revocation may result providing the court can make sense of the remaining provisions.

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: It was held that presence requires there to be a line of sight between the testator and the act of destruction.

Animus revocandi intention to revoke Re Sabatini [1969] 114 SJ 35: The testator must have the intention to revoke the will, the same degree of mental capacity being required as for making a will. Gill v Gill: The intention to revoke must coincide with the destruction of the will. Brunt v Brunt [1873] 3 P&D 37: Failure to revoke because the destruction was effected by a very drunk testator.

Presumptions There are two presumptions of considerable importance in practice concerning revocation by destruction. i. Mutilated will If a will is found on the testators 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). Bell v Fothergill [1870] 2 PD 148: The presumption may be rebutted. ii. Lost will Sugden v St. Leonards [1876] 1 PD 154: If a will cannot be found on the testators 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. dEye v Avery [2001] WTLR 227: The presumption cannot apply if the testators will had never been in his possession. Chana v Chana [2001] WTLR 205: The presumption cannot apply if the will had been given by the testator to someone for safe-keeping. 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. Sugden v St. Leonards: The evidence of the alleged chief beneficiary was accepted because she was an exceptionally competent and unimpeachable witness.

Mini Question: T makes a will in 2000 containing a clause revoking all prior wills (although T had not previously made a will). In 2001 he makes another will revoking his first will. The following year he makes a codicil reviving the first will. Which documents represent his will? Conditional revocation A will is not revoked if the testator revokes it conditionally and the condition is not satisfied. Clear evidence is required that the testators intention was to revoke conditionally. The basic rule is that if a testator only wishes to revoke his will 5

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.

Re Jones [1976] Ch 200: In this case the correct approach was emphasised that revocation will not be held to be conditional unless there is clear evidence that that is what the testator intended.

Re Finnemore [1992] 1 All ER 800: Note that it is possible for a testator to have both a conditional and an absolute intention to revoke in the same instrument.

The conditional revocation rule has been applied primarily in the following scenarios: Failure to execute another will Dixon v Treasury Solicitor [1905] P 42: The testator revoked his will conditionally on executing another will, but failed to do so.

Failure to execute a valid will In the Estate of Botting [1951] 2 All ER 997: The testator revoked his will conditionally on executing another will, but executed it invalidly.

Failure to execute an effective will In the Goods of Hope Brown [1942] P 136: The revocation was conditional on the execution of another will, but the testator executes a will which, although valid, lacks effect.

Failure to revive a will 6

Powell v Powell (1866) 1 P&D 209: 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.

Mistaken belief In the Estate of Southerden [1925] P 177: Where the testator revokes his will in a belief which turns out to be mistaken.

It is arguable, however, that mistaken belief cases are not strictly examples of conditional revocation but rather of an absolute intention to revoke.