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