How to revoke a Will: Is ‘intention’ enough?

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Slee Blackwell’s Charlotte Dullaway looks at the law governing how a Will can be revoked.

We frequently receive enquiries asking whether a Will remains valid if its maker intended to revoke or change it but did not get around to doing so before their death. Although the answer is generally quite clear cut, it can be useful to consider why they wanted to change their Will and whether their reasoning gives rise to any grounds to challenge it.

There are three ways to revoke a Will and it is the last option which most often causes confusion.

Revocation of a Will by marriage

When someone marries (or enters into a civil partnership) their Will is automatically revoked. The reasoning behind this is that their new spouse or civil partner is more likely to benefit under the intestacy rules than under a Will which was potentially written before their relationship began.

There is however an exception to the rule. If, at the time of making the Will, the testator was expecting to marry a particular person and it was their intention that the Will should not be revoked by that marriage then the Will may remain valid. The same provisions apply to civil partnerships. As only evidence from within the Will itself is admissible when trying to establish the intentions of the testator it is important for the Will to contain a declaration about the testator’s intention for the Will not to be revoked by the marriage.

Divorce, on the other hand, will not revoke a Will, but gifts to a former spouse or civil partner will fail.

Revocation by a subsequent Will or Codicil

Statute provides that a Will shall be revoked by a later Will or Codicil if the later document shows the testator intended this to be the case. Most Wills begin with words to the effect of “I revoke all former Wills and Codicils” to ensure the requisite intention is shown. However, this does not always happen and when such wording is absent it is possible that only clauses in the old Will which are incompatible with clauses in the new Will would be revoked.

Revocation of a Will by destruction

Section 20 of the Wills Act 1837 says that a Will (or Codicil) is revoked if the testator, or someone acting in his presence and at his direction, destroys the Will with the intention of revoking it.

There are two elements to this:

  1. the destruction itself and
  2. the intention to revoke.

The Will would only be revoked if both elements are fulfilled. Accidental destruction or destruction by someone other than the testator and not in his presence and by his direction will not revoke a Will. Likewise, the intention to revoke by itself is not enough. So if a testator informs you that they intend to revoke their Will, but do not take any steps to destroy it, it will not be revoked.

What can you do if the Will is not revoked?

Even if a Will remains is not revoked and remains in place, it may still be worth investigating the validity of the Will.  For instance, if the testator intended to revoke their Will because they felt they were subjected to undue influence when making it or if they were not aware of the terms of the Will then this may be grounds for arguing that the Will is not valid.

How we can help

Our team of specialist lawyers are on hand to assist you with your probate dispute – whether you are an executor, a beneficiary or another party with an interest in the estate. If you would like to discuss a potential validity challenge or your concerns about the standing of a Will call our Free Helpline today on 0808 139 1596 or send an email to [email protected]