Revoking a will

The purpose of a will is to dictate the distribution of your money and possessions on death according to your wishes. Over time, people may want to revoke, amend or invalidate their existing will. There can be complexities associated with doing this.

Methods of revoking a will

Anyone can revoke their will at any time before death, as long as they have capacity to do so.

Section 20 of the Wills Act of 1837 explicitly states the 3 following ways in which a will can be revoked:

1. Making a new will or codicil

Making a new will, which on the face of it deals with all the testator’s assets does revoke a will. However, clarity is needed to ensure that the new will is not a in fact a codicil. For this reason, most professional wills include a formal declaration of revocation. In creating the new will, the testator must comply with the same legal formalities as when writing the previous will. It must be in writing, signed by the testator and witnessed by 2 individuals.

2. Destroying the will

A will can be revoked through deliberate physical destruction by a testator, this involves tearing, burning or otherwise mutilating the will. There must be clear evidence that the act of destruction was not merely accidental. To constitute revocation, there must be clear intent of revoking the document.

A recent High Court ruling over a partially destroyed will outlines the required approach when there is unclear intent. In 2022, a 92 year old woman tore three quarters of the way through her will whilst in hospital during the last few weeks of her life. This raised the issue of whether partial destruction constitutes a clear intent to revoke. It was decided that partial destruction does not conclusively establish revocation, the court considered the state of the will, potential influence from other parties and the context of the destruction to better understand the woman’s intentions. Thereby emphasising that the testator’s wishes are paramount.

3. Formal declaration

A will may be revoked by signing a revocation provision, this is a formal written declaration or clause that revokes any previous wills made. Like with making a new will, all the legal formalities of creating a will must be followed.

Involuntary Revocation

Section 18 of the Wills Act provides that a marriage or civil partnership will automatically revoke any prior will made unless the will was made in contemplation of the marriage or partnership. Interestingly, divorce has the opposite effect and will automatically revoke any provisions of the will made in favour of a former spouse unless explicitly stated otherwise.

Presumed Revocation

Presumed revocation occurs when a will is destroyed or cannot be found after the death of the person who made it. In this situation, the court will presume that the testator intended to revoke the will, especially if it was in their possession at the time it went missing.

This is a rebuttable presumption that can be invalidated by evidence showing that the loss or destruction was not intentional. Here, as above, the court will focus on the intentions of the testator.