Revocation.

Michael Brierley, who heads up Mundays’ contentious trusts and probate matters looks at Will revocation.

He draws on the breadth of his professional experience to highlight how and when things go wrong and uses examples to explore the problems probate solicitors often encounter. These notes are an opportunity to look at your own needs and to see why it is so important to use professional services to ensure your Will not only reflects your wishes, but vitally, is given the best chance of achieving them.

It’s your Will – make sure it’s right.

Revocation

The execution of a Will, in most circumstances, revokes any earlier versions. At the beginning of a well drafted Will there is usually a short paragraph expressing revocation as the intention of the testator (a testator is the person whose Will it is).

A revocation clause ensures there can be no doubt that the testator intended the provisions in the new Will to stand against any earlier ones they had. There is no requirement for a Will to contain this statement however it is certainly best practice to have one.

A further method of revocation is by destruction which is why you occasionally find that a solicitor suggests the testator physically destroys the earlier one once the new Will has been signed.  The best way to do this is to rip up the original (making sure it is the old one) and writing ‘Revoked’ across any copies you keep.

If a solicitor does advise you to physically destroy the old one they will take a careful note of this for their file so there will be no confusion in the future about what happened to the earlier one.

If a revocation clause does appear in the Will then ideally it should be accompanied by a clear date for when the Will was executed. Again, there is no requirement for a Will to be dated but the absence of a date can cause serious issues if the testator has had more than one Will during their lifetime.

Example scenario

On a person’s death two undated wills are found. One Will leaves ‘my home Pear Tree Cottage’ to Jane Smith and the other leaves ‘my entire estate to Peter Jacobs’.

Both wills are correctly executed but only the newest one is valid (because its creation revoked the earlier one). So which is the newest one? If Jane and Peter enter into a dispute it would be necessary to establish which Will was made most recently. This could be difficult to do and would quickly become costly with the possibility that both parties could come away with significant legal costs.

The chances of a dispute between Jane and Peter would be significantly reduced if both Wills had been dated.

Legal Nugget – Revocation by destruction

There is a presumption that a Will has been revoked by destruction if the original Will was known to be in the possession of the testator but cannot be located. Unless strong evidence can be found to rebut this presumption the Will is deemed revoked and the person is treated as having died without a Will.

In such a situation you could find an entire family split apart with some arguing the terms of the Will (if a copy is found) should be honoured, with others arguing the rules of intestacy should apply with them all receiving equal shares.

Being unable to find a testator’s Will happens relatively often and can have dramatic consequences. The presumption of revocation even applies if a copy of the Will has been found. The original needs to be found. This is why it is so sensible to have your Will stored safely – either in a secure safe or with your solicitor. This is also why solicitors take such careful records when a testator decides to store their Will at home.

Conclusion

If you are considering getting a Will then ensure it is professionally drafted, keep a copy at home, a copy on email and leave the original to be stored with your solicitors.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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