Revocation of wills

Question 1

What are the ways in which a will can be revoked?

Answer 1

1. marriage
2. by making another will or codicil
3. by some writing
4. by destruction

Question 2

Which of the ways to revoke a will is automatic?

Answer 2

marriage

Question 3

Are there any exceptions to the marriage revocation?

Answer 3

If the testator makes a will before marriage and it states that the testator is expecting to be married to a particular person and the testator does not intend the forthcoming marriage to revoke the will

Question 4

What are the two types of revocation when making another will or codicil?

Answer 4

1. express revocation
2. implied revocation

Question 5

What is express revocation?

Answer 5

It is a clause in the new will that sets out the intention of the new will is to revoke any previous wills

Question 6

What is implied revocation?

Answer 6

Typically occurs when the testator has made a new will but it does not contain an express revocation clause

Question 7

If the testator has two wills that have both been validly executed which is valid?

Answer 7

The latest one, even if lost or destroyed

Question 8

How can ‘some writing’ revoke a will?

Answer 8

If it is executed in the same way as a will and the testator has capacity

Question 9

How can a will be revoked by destruction?

Answer 9

Burning, tearing or otherwise destroying but the testator has to have intended to make the will of no effect - destroying the will in a ‘red mist’ fit or uncontrolled anger or melodramatic gesture or drunk is unlikely to bring about a revocation

Question 10

What would happen if only some of the will was destroyed?

Answer 10

If the destroyed part contains the signature or signature of the witnesses then that would probably suffice but if parts have been destroyed and the rest makes sense without them its more likely to be found to have been partially revoked

Question 11

What happens if the testator scribbles out some writing but it is still legible underneath?

Answer 11

Unsuccessful obliteration is not destruction so the legible words will still be admitted to probate

Question 12

Is there a requirement for destruction to be witnessed?

Answer 12

No

Question 13

What is the will has been found mutilated after the testator has died but there were no witnesses?

Answer 13

The legal presumption is that if the will was in the testator’s keeping prior to death then it was the testator who mutilated it intending to revoke it but this can be displaced by evidence to the contrary

Question 14

Can the testator instructs someone else to destroy the will on their behalf?

Answer 14

Yes but the testator has to be present when the will is destroyed