DAVID-KRATOS NOTES ON REVOCATION OF WILLS

Revocation.

To be valid, the law requires that the testator must have animus revocandi in order to effect the
revocation.
The only circumstance in which a will becomes irrevocable is when the testator lacks a full
mental capacity.
Section 9 of the Wills Act, 1971, deals with revocation as follows:
"9(1) A will may be revoked by tearing or other physical destruction by the testator or by some
other person in his presence and by his direction with the intention of revoking it.
(2) A will may be revoked by a written declaration of an intention to revoke, executed in the
same manner as a Will"
(3) A will may be revoked by the execution of another will which is expressed to revoke the
previous will.
(4) A will which is not expressed to revoke a previous will shall not be deemed to have revoked
that previous will except to the extent that it is inconsistent with the previous will.
(5) Where a testator destroys a will (a) as a result of Fraud or undue influence; or (b) under a
mistake of fact or law intending to make some other disposition of his property which is not
validly made, such destruction shall not be deemed to have revoked the will."

Forms By which a will may be revoked.

1. Destruction with intent to revoke;
2. Execution of a subsequent will or codicil;
3. Execution of a subsequent document declaring an intention to revoke.

In the Estate of Wayland a testamentary document declared that it was intended to deal only
with my property in England; and was construed by the court as not affecting other properties of
the testator's in Belgium.

In the Estate of O'Connor the court ruled valid a will which was declared to be ineffective in
the event of the testator's wife failing to survive him.

The revocation clause may be contained in a document other than a will; the only necessity is
that the document should be executed with the necessary formalities.

Re Spracklan's Estate . Several weeks before her death, the testatrix sent a letter, signed by
herself and two witnesses, to her bank where her will was deposited asking: "will you please
destroy the will already made out". It was held that the letter was an intention to revoke the will
and it had been duly executed. On a dissenting note, Sir Wilfrid Greene MR stated that
if the matter had been free from authority he might have reached a different conclusion since an
intention to destroy does not necessarily amount to an intention to revoke.

Revocation by an express clause.

The legal basis for revocation by express clause is to be found in
Section 9(2) of the Wills Act, 1971: "A will may be revoked by the execution of another will
which is expressed to revoke the previous will.

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The validity of this type of clause arose in Lowthorpe-Lutwidge v. Lowthorpe-Lutwidge

where the court held that substantial evidence is required to show that a general revocation
clause is ineffective for want of intention since a testator is presumed to have known and
approved the contents of his will. It is important that revocation is expressed clearly, otherwise
subsequent wills may not revoke an earlier will.

The Burden of proof of Revocation is on the party asserting that there has been such a
revocation.

Revocation by Destruction.
Two elements are required for revocation by destruction to be effective;
(1) a physical act of destruction, accompanied by (2) an intention to destroy.

Tearing, burning or acts ejusdem generic are considered sufficient to constitute 'destruction.

In In The Goods of Godfrey where a signature was destroyed but was still legible, the court
held that there had been no physical destruction.

In The case of Cheese v. Lovejoy the testator revoke his will by crossing and writing on the
back of the document "These are revoked". He then kicked the document across the room where
it was retrieved by a maid and kept with other papers. The court admitted the will to probate,
noting "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.

In Gill v. Gill, a wife tore up her drunken husband's will in a fit of temper. The will was held not
to be revoked as it had not been destroyed at the testator's direction.

In b Dadds shows the vital nature of testator's presence. The testatrix, who was confined to bed,
instructed one of her executors to destroy a codicil to the will. The codicil was taken to another
room and burnt (in the presence of the executor and several others) as there was no fire in the
testatrix's own bedroom. It was held that the codicil was not revoked as the testatrix was not
present at the burning, and the executor and others who knew its contents could not give
evidence as to itscontents for purposes of admission to probate.

Mills v. Millward -
Shortly before her death the testatrix showed her will to her sister-in-law who tore it up upon
seeing that neither she nor her husband were to benefit under the will. Having apologized, the
sister-in-law urged the testatrix to make a new will. She declined and died without a new will. It
was held that the will was not revoked as the destruction did not take place in the presence of the
testator.

In Brunt v Brunt in a fit of automatism the testator destroyed his will. It was held that there was
no intention to destroy the will.

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In the Soutdern case after returning from America a testator destroyed his will believing that
his wife will inherit all under the rules of intestacy . It was held that there had been no proper
destruction of the will.

Perkes v Perkes, the court held not every tearing would amount to a destruction of a will . In
that case he had a fight with a beneficiary under the will and started tearing it . He was restrained
and the beneficiary apologized and he acknowledged that they were lucky the will was not
totally destroyed .

Destruction of the whole will is not required but there must be a vital part of the will that is
destroyed.
An immediate inference is made that a testator intended to destroy a will if he cuts off his
signature.

In the Estate of Nunn, where a testator cut out a portion of his will it was held that only the
portion that was cut out was inoperative.
Leonard v. Leonard where the Testator had destroyed the first two pages of a five paged will
and where without the destroyed parts the rest of the will made no sense the court did not admit
the will to probate
In the Goods of Woodward a testator had drawn up a will on sheets of paper, signing each
paper at the bottom together with witnesses.However, the first eight lines of the will had been cut
off although the contents were known. As there was no proof of intention io revoke the entire
will, the document was admitted to probate in an incomplete state.
In In the Estate of de Kremer the testator contacted his solicitor by telephone expressing the
desire to make a new will. He asked the solicitor to destroy the old will which the latter did in the
testator's absence. The court said that the solicitor had committed a professional error and that
the will was not revoked.
In Re Dadds, a testatrix who was ill called for assistance in order to revoke a will. The assistant
took the will into another room and burnt it. It was held that the revocation was invalid, as the
will was not burnt in the presence of the testator.
In Giles v.Warren, a testator destroyed a will believing it was already invalid. It was held that
the will was not revoked by destruction.
Also in Scott v. Scott , the will was destroyed in the false belief that it had already been revoked
by a latter will. It was held that there was no intention.
In Re Jones the testator destroyed a will in the mistaken belief that it was of no effect and that
he was merely disposing of what he thought was rubbish. The court said that the right inference
to draw was that he did not intend to revoke it at all.

In The Goods of Brassington, a habitual drunk, while in a state of alcoholic stupor, tore up his
will and tried to stick it back together. There was evidence that he had told his doctor that he had
torn up his will but did not know what he was doing. The court held that the act of destruction
had not revoked the will.

A will known to have been in the testators possession during his life time but is missing at death
is presumed revoked by destruction. The presumption may be rebutted on the basis of a wide

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range of evidence tending to show that the testator did not intend to revoke the will. House
breaking, burglary, civil commotion, etc., may well rebut the presumption.

In Lefebure v. Major, a Canadian case, the presumption was rebutted when evidence was
adduced to show that the testator had remained on good terms with the major beneficiary and
that the will may well have been lost together with other property of the testator's after his death.

Welch v. Phillips - if the will was known to have been in the testator's possession, the court
presumes it destroyed by the testator with the intention of revoking.

In Re Booth, evidence as to the contents of a missing will was given by the wife, to whom a
deceased army officer husband had left his estate absolutely. The will was believed to have been
burnt for sometime before the death of the testator. The wife's evidence was ruled admissible and
the will was admitted to probate.

In Sugden v. Lord St. Leonard, a holograph will could not be found at the death of the testator.
Several codicils to the will were available, however. The will was proved solely on the evidence
of the testator's daughter of whom the court said "of her integrity there can be no doubt."

Re Webb shows a related point and establishes that a draft copy of a will may be admitted to
probate as secondary evidence of the contents of the will as the maxim omnia praesumuntur rite
essa acta (ill acts are-presumed to have been rightly and regularly done) would apply in the
absence of evidence to the contrary to suggest that the will had been duly executed. In that case,
testatrix's sister had found a copy of the deceased's will in a trunk shortly before the testatrix
died. The testatrix asked her not to throw it away as it was her will. After the testatrix's death the
original of the will could not be found and a grant of probate was sought for the copy.

A will found mutilated at the death of the testator is presumed mutilated with intention to revoke.

In Re Phelan, the testator was held not to have been sufficiently aware of revocation clauses
which were consequently excluded from probate.
In Collins v. Elstone, the testatrix although aware of the presence of the revocation clause in her
will, was unaware of its true legal effect. The clause was held to be valid and to have disposed of
her previous dispositions.

Implied revocation
This arises in situations where a subsequent will contains provisions inconsistent with or
repetitive of provisions of a previous will without expressly revoking relevant previous
dispositions or clauses. In such cases the earlier will is revoked by implication.

The court reads all provisions of the will together and allows later provisions to prevail over
earlier clauses with which they are inconsistent. Birks v birks

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Dempsey v. Lawson, had made an earlier will. She made a later one without revocation or
residuary clauses. It was held that as she had intended to replace the earlier will the residuary
beneficiaries under that will will receive nothing.

In re Bryan the testatrix made a will leaving, amongst others, a legacy to a niece and a sum of
money on trust for her (testatrix's) sister for life with remainder to her niece for life, reminder to
the children of her niece. She made a further will, substantially repeating the earlier gifts but
omitting the trusts in favour of her niece and her children as well as reducing the niece's
legacy. The later will contained no revocation clause and no gift of residue. Consequently an
issue arose as to whether the niece and her children were entitled to benefit under the trust under
the earlier will since it had not been expressly revoked by the later will. It was held that upon
proper construction it was clear that the testatrix intended the latter will to supercede the former
which was consequently revoked by implication.

Methuen v. Methuen
The testator made a codicil to a will, conferring certain benefits on his wife and children.
Following the marriage of one his daughters he made a further codicil which recited that
he had made provision for the married daughter, and proceeded to make dispositions to the wife
and the other daughters, different from the terms of earlier codicil. It was not clear that the
dispositions of the codicils were meant to be cumulative, in which case The deceased's property
would have been insufficient for the payment of all the legacies he had given. It was held that on
account of the doubt arising from the face of the testamentary instrumenT the court was entitled
to look at extrinsic evidence relating to the facts known to the testator, and that on that evidence
it was clear that the codicils were not meant to be cumulative.

Implied revocation by codicil

Hearle v. Hicks suggests that the court will tend to retain the provisions of the will. In that case
the testator had left copyhold to his wife for life. He executed a codicil leaving the freehold and
copyhold land to his daughter for life. The court held that the clear and unequivocal gift to the
wife should not be revoked by the more general gift in the codicil.

In Re Howard where the testator left his estate to his son. He later executed two further wills on
the same day, one in favour of the son and the other in favour of the wife.
Both wills contained a revocation clause revoking all previous wills. It was held that although the
two wills had revoked the earlier will, they were both inadmissible to probate for inconsistency
and for lack of evidence to show which was executed first.
In Re Phelan where a testator had executed a number of wills on the same day, each containing
a clause revoking all previous wills, the revocation clauses were omitted on grounds of lack of
knowledge and approval.
In The Estate of Green-having made a new will, the testator destroyed his old will. Upon
considering the intentions of the testator when he destroyed his old will, the court held that the
intention to destroy the earlier will was absolute and that that will was revoked immediately on
destruction.
In In Re Jones the testatrix had formed the intention of making a new will for a different set of
beneficiaries and on that basis had destroyed her old will. It was held that her intention was to

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disinherit the major beneficiary under the old will and that it did not matter that the revocation
resulted in intestacy.

In Re Robinson a testatrix had given property to her son and after his death provided for the
property to be divided equally amongst her grandchildren. In a subsequent will, the testatrix gave
her estate to the son absolutely but this was held to be void as the son's wife was an attesting
witness. The court held that there was no intention to revoke the earlier will or to link it to any
events

Privileged wills may be revoked in the same manner as other will, except that unless they are in
writing they cannot be revoked by destruction. A privileged will may be revoked by a further
will in writing, whether privileged or not.
Revocation of privileged wills was considered in In The Estate of Gossage; Wood v. Gossage.
The testator had made a previous written will making his fiancée the executrix and beneficiary of
certain properties. While abroad, he asked that the will should be given to his sister, directing her
as to the disposal of his property and asking that the previous will be burned. After the testators
death, the fiancée sought to have a copy of the burnt will admitted to probate. It was countered
that the letter to the sister had declared an intention to revoke. This was accepted by the trial
court.
On appeal, it was held that privileged wills are entirely outside the statutory regulations of the
Wills Act, 1837.

in Re Booth- Although Made in writing, the will in this case would have been considered
inadequately executed if the testator had not been a soldier during active service. Although the
document survived the war, it got burnt. The surviving spouse attempted to propound the will to
various objections. The objectors led evidence that the testator knew that the will was burnt and
considered it revoked, but the court held that mere acquiescence in destruction of the will by fire
did not constitute revocation. And defendant's suggestion that the Roman law principle that a
privileged will should automatically lapse by operation of law one calendar year after the
testator's privilege was declined.

A member of the armed forces may revoke his will in an informal manner even by word of his
mouth.

Dependent Relative Revocation

Where, for instance, a testator purports to revoke a will on the basis that a new will is valid, or
that the rules applicable on intestacy would make the desired provision, if the new will is invalid
or if the intestacy rules do not have the desired effect, the old will remains effective and not
revoked. This is the result of the doctrine of dependent revocation.
The principle of dependent relative revocation has a statutory effect in section 9(5) of the Wills
Act, 1971, which says: Where a testator destroys a will... under a mistake of fact or law intending
to make some other disposition of his property which is not validly made, such destruction shall
not be deemed to have revoked the will

In Powell v. Powell, the testator in 1865 destroyed his will of 1864, with the expressed intention
of thereby reviving a will of 1862 which had been revoked by the 1864 will. A will, unknown to

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the testator, could not be revived merely by revoking the instrument which first revoked it. This
was a mistake of law. It was held that the act of destruction by the testator of the will was
referable solely to his intention to validate the will of 1862, and that act being conditional, and
the condition being unfulfilled, there was no revocation."

In the Estate of Bromham, where a testator destroyed his will with the intention of making a
new one but he was too Ill to make it, it was held that the first will remained effective.

In Dixon v. Treasury Solicitor, the testator destroyed his will in the beliet that a new will could
only be made after the destruction of any existing one. As he was unable to complete the
new will, it was held that the old one remained effective.

In the Estate of Southerden," the testator had left everything to his wife in his will. Afterwards,
he burned the will because he wrongly believed that in the event of his dying intestate his wife
would take all his estate. It was held that this was a conditional revocation and, as the intestacy
rules did not have the desired effect, the will was not revoked.

The doctrine of dependent relative revocation may also be invoked at times, where an alteration
is irregularly made to an existing will.

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