Revoking a will

As well as providing advice regarding disputing a will or in relation to inheritance disputes, our will dispute solicitors are often asked to consider whether a will has been revoked. If a will is revoked, this effectively means that it has been cancelled.

There are three ways in which a will can be revoked.

  1. Revocation of a will by making a subsequent will or codicil

A will can be revoked by making a new will or codicil. It is best practice for a testator wishing to revoke his will, to make a new will or codicil, because he can state clearly what his intentions are. Ideally an express revocation clause should be included stating that the new will replaces all previous wills.

  1. Revocation of a will by marriage

When a person gets married (or enters into a civil partnership) their will is automatically revoked (unless their will was made in anticipation of the marriage).

  1. Revocation of a will by destruction

A will can be revoked if a testator destroys their will with the intention of revoking it. So if a testator destroys their will by mistake, the law will not accept that it has been revoked. It is this type of revocation which can cause uncertainty and confusion for clients. We are often asked to advise in situations when an original will cannot be located and there is uncertainty about the testator’s intentions regarding revocation.

In the very recent case of Blyth v Sykes (2019) the court decided that there was insufficient evidence to conclude that the deceased’s will had been revoked by destruction.

This case concerned the estate of Mrs Agnes Moore who died in January 2016. After Mrs Moore’s death, her family found, amongst her possessions, a copy of a solicitor drafted will which was executed on 11 April 2008 (“the Will”) in an envelope. The envelope contained printed instructions relating to what to do if the testator's intentions changed and when the Will might become invalidated. It also bore the printed statement "Your original/copy will is enclosed". The word "Original" was struck through on the envelope, leaving the impression that the envelope just contained a copy. There were additional printed instructions on the envelope, which stated "keep a note in this envelope if the Original Will is deposited elsewhere". There is no evidence that there was such a note in this envelope.

The envelope also contained a draft of the Will and an invoice from the solicitor who had prepared the Will. The original of the Will was never located which resulted in a will dispute being commenced.

In the Will, Agnes Moore divided her estate equally between Gail Blyth (her daughter and also the Claimant in these proceedings), Debbie Sykes (her other daughter), William (her son) and Leslie Sykes (Debbie’s former husband).  There was a default provision in the Will whereby if any of the beneficiaries died before the deceased, then the share that they would have inherited would be divided equally by the children of that deceased beneficiary. Debbie Sykes passed away on 26th February 2015.

In the proceedings, Gail Blythe alleged that after Debbie Sykes had passed away, that the Deceased tore up the Will with the intention of revoking it and that the estate should therefore be distributed in accordance with the Intestacy Rules. In her oral evidence, Gail Blythe spoke of having been told by her mother in the course of telephone conversations that she (the Deceased) had torn up the Will. She also alleged that the Deceased wanted to change the beneficiaries named in her will.

If an original will is last traced to the possession of the testator and is not forthcoming at his or her death, there is, a legal presumption, in the absence of contrary evidence, that the testator destroyed it with the intention to revoke it.

After considering all of the evidence, the Judge was not satisfied that Gail Blythe had proved that the Will was even in the Deceased’s possession from 2015 (after Debbie Sykes died) to the date of Mrs Moore’s death or that it had even been in her possession in the preceding years. In the circumstances, the presumption did not apply and the court was unwilling to make a finding that the Will had been revoked.  The court decided that it was appropriate to allow the copy of the Will to be admitted to probate.

If you would like to discuss whether a will has been revoked, challenging a will, a probate dispute or any contentious probate matter, please contact our contentious probate solicitors on 01902 424927 for an initial free consultation. Alternatively, please email us at contentiousprobate@georgegreen.co.uk. In many cases, funding by way of “no win no fee” will be available.