1. Provide an overview on the revocation of wills.

(3Marks)

A will is revocable during the lifetime of the testator meaning that the individual can only change
it at any time before their death.1In Kenya the rules on Revocation are governed by Section 76 of
the Law of Succession Act Cap 160 and Rule 44 of the Probate & Administration Rules. There
are two types of revocation;

Involuntary revocation, occurs by marriage through the operation of the law. The law can be
used to challenge grounds on the insufficient inclusion of a dependent of the testator. Section 26
of the Act allows for dependents inadequately provided for to challenge the will through an
application for reasonable provision. Section 29 dictates that dependents include wives who had
been married to the testator but the will had not been altered to cater for them.2

Voluntary Revocation on the other hand may be done through express revocation, implied
revocation and revocation by destruction.

i. Express Revocation

Express revocation, here the testator uses withdrawal clauses in the latter will that revoke parts of
the former will. Here it is important that the testator indicates cancellation of all former wills and
testifies that the current will is the last disposition of their wealth. In Lowthorpe-Lutwidge v
Lowthorpe-Lutwidge the case sought to clarify whether the testator had sufficiently revoked the
former wills by use of the words, “I revoke all former wills this being my last will and
testament”

The court held that the introductory words are paramount to wills in express revocation. The
testator must clearly show the intention to do away with any former wills placing reliance on the
current will. If the opening words had just been,” this is my last will and testament” the
revocation would have failed.3

1
‘Revocation of Will | Legal Guidance | LexisNexis’ <https://www.lexisnexis.co.uk/legal/guidance/revocation-of-
will> accessed 23 March 2021.
2
Oraro & Company Advocates Newsletter, “Legal & Kenyan” (2019)pg. 7
3
admin, ‘Lowthorpe-Lutwidge v Lowthorpe-Lutwidge: 1935’ (swarb.co.uk, 7 April 2020)
<https://swarb.co.uk/lowthorpe-lutwidge-v-lowthorpe-lutwidge-1935/> accessed 23 March 2021.
 ii. Implied revocation

It occurs when the testator constructs a new will with no specific clauses that revoke the former
will. This is despite the fact that the former will is completely different to the latter. 4

iii. Revocation by destruction

Here there are two specific elements that are required; the action that manifests obliteration of
the document and an intention to revoke the will.5 The act of destruction can be displayed by
burning, tearing or any other act that may destroy the will by the testator. In Cheese v. Lovejoy
the court held that cancellation of parts of a will using a pen could not amount to an act of
destruction. The Court of Appeal held that there was no act of destruction hence the revocation
could not suffice.6

The Intention to revoke the will shows the wish of the testator to revoke the document either
wholly or partly. To fully prove that there was sufficient intention to revoke a will the mental
capacity of the testator must be assessed. A will destroyed in an accident or by mistake shows
that revocation was not intended. In Doe d. Perkes v. Perkes the testator in a fit of anger had torn
up the will into four pieces while in a tussle with one of the beneficiaries. When the two
reconciled the testator became calm and put the pieces together. The court held that the will had
not been revoked because the testator’s intention to destroy was not completed.7

It is also necessary to identify whether the testator intended to revoke the will wholly or partly.
This is done by the scrutiny of their expressed intention from the state of the document after the
testator has completed the act of destruction.

In conclusion, revocation of wills may be done by an individual only during their lifetime.
Revocation may be voluntary or involuntary. Involuntary revocation may occur in the event of
marriage where the deceased had not made changes after the solemn union thus creating

4
‘Implied Revocation of Wills’ (LII / Legal Information Institute)
<https://www.law.cornell.edu/wex/implied_revocation_of_wills> accessed 23 March 2021.
5
R.Kerridge, Law of Succession( 1st supp, 12th edition, Sweet & Maxwell 2009) pg. 138
6
‘Wills: Proof of Lost or Destroyed Will as Revocation of Earlier Will: Dependent Relative Revocation: Statutory
Construction on JSTOR’ <https://www.jstor.org/stable/3475974?seq=1#metadata_info_tab_contents> accessed 23
March 2021.
7
Joseph Warren, ‘Dependent Relative Revocation’ (1920) 33 Harvard Law Review 337.
dependents. Voluntary revocation is mainly exhibited by showing destruction of the document
with sufficient intention to destroy, express revocation or implied revocation.

References

Statutes

Law of Succession Act Cap 160

Books & Online Journals

Joseph Warren, ‘Dependent Relative Revocation’ (1920) 33 Harvard Law Review 337.
Oraro & Company Advocates Newsletter, “Legal & Kenyan” (2019)
R.Kerridge, Law of Succession( 1st supp, 12th edition, Sweet & Maxwell 2009)

Websites

https://www.lexisnexis.co.uk/legal/guidance/revocation-of-will> accessed 23 March 2021.

https://swarb.co.uk/lowthorpe-lutwidge-v-lowthorpe-lutwidge-1935/> accessed 23 March 2021.
https://www.law.cornell.edu/wex/implied_revocation_of_wills> accessed 23 March 2021.
https://www.jstor.org/stable/3475974?seq=1#metadata_info_tab_contents> accessed 23 March
2021.