A Will is ambulatory. You may alter or revoke your Will during your lifetime provided you still have the mental capacity to do so. Below are the ways of revoking a Will.
Express revocation
The simplest method of revoking a Will is by validly executing a further Will. The clearest manner in which this can be expressed is by including a revocation clause in the later Will. This should state “I hereby revoke all former Wills and Testamentary dispositions made by me.” (Or similar words to that effect).
If no revocation clause is present then it is implied that the later Will revokes the parts of the earlier Will that conflict. The clauses in the earlier Will that do not conflict with the later Will remain in place. This may not be what you intended when writing the new Will.
It is also possible to revoke your Will without creating a new Will. Under section 20 of the Wills Act 1837 a person may revoke their Will “by some writing declaring an intention to revoke the same”. This must be executed in the same manner as a Will.
Revocation by Marriage or Civil Partnership
If you execute a Will and subsequently get married then your marriage will revoke your Will automatically. The same rule applies to civil partnership. This is provided for in section 18 and section 18B of the Wills Act 1837.
There are some circumstances in which your marriage or civil partnership will not revoke your Will. If it is clear that the Will was made in contemplation of marriage or civil partnership then your Will can remain intact.
It is important to express your intention clearly, for example: “This Will shall not be revoked if the proposed marriage to my intended wife/husband [NAME] takes place.”
Revocation by Destruction
You may revoke your Will by destroying it, as long as you intend to revoke it by your act of destruction. If you should accidentally destroy your Will it will not be revoked. You must have the required mental capacity to revoke your Will by destruction. If a person is of unsound mind when they destroy their Will then it is not actually revoked.
Turning once more to section 20 of the Wills Act 1837, a Will is revoked by “the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”
The destruction cannot be merely symbolic and it must be complete. That is not to say that the whole Will must be destroyed, but enough must be destroyed to render the Will invalid. For example a Will may be revoked if the witnesses’ signatures are destroyed, but not if they are merely crossed out and remain legible.
The destruction can be done by another person. This will only revoke the Will if it is done in your presence and at your direction.
2 comments
Richard Barber
13th July 2021 at 7:56 am
When a codicil, more recent to and with specific reference to an earlier Will, is discovered after probate is granted is it valid?
The Codicil was properly drawn up by the lawyers for a now deceased couple, on the Stationary of an insurance company of note and repute and continuing to this day, Revoking all previous directions regarding the beneficiaries of said Policy to the benefit of one other beneficiary of the joint Estate.
The beneficiary and his then wife were Trustees at the time of writing and subsequently divorced., this divorce being one reason for the codicil. The. surviving spouse later amended the Will wholly excluding the son of the now divorced couple , whose father passed away ten years before the testator. . This last change has been accepted but not that change related to the insurance policy.
Does section 20 0f the Wills Act 1837 prevail in this case?
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Sam Smith
9th August 2021 at 9:40 am
Hi Richard,
A codicil is valid even if found later after the will has been executed and the estate administered. The problem though is that the rightful beneficiary may find it difficult to recover the assets that they are entitled to if they have been distributed to someone else.
kind Regards
Sam
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