Revocation, Republication and Revival of a Will

Question 1

Name the case.

The testatrix and witnesses’ signatures were scratched out as if someone used a knife.

HELD: Will was invalid, it was revoked.

Answer 1

In Goods of Motron (1887 ])12 PD 141

Question 2

What is the presumption if a Will was last in the possession of a third party and cannot be found?

Answer 2

Where a will was last in the possession of a third party, and not the testator, then if the will cannot be found on the death of the testator, the presumption is that the will was not revoked by the testator unless there is evidence to rebut this presumption.

Question 3

How can a will or codicil be revoked?

Answer 3

(a) by marriage S.16;

(b) by another will or codicil executed in accordance with S.7; or

(c) by a written revocation executed in the manner in which the will was executed; or

(d) by the burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction with the intention of revoking it

(Section 18 of the Wills Act)

Question 4

What are methods of reviving a will or codicil

Answer 4

re-executing the very Will or Codicil; or

another Will or Codicil which clearly demonstrates an intention to revive the revoked Will or Codicil.

Question 5

Generally, describe how a Will may be revoked by Marriage

Answer 5

The answer may include:

• The general rule pursuant to statute is that marriage automatically revokes any Will made by either party before the marriage. This is automatic (by operation of law)
• No mental element is required, It is irrelevant whether the party intends marriage to revoke the will.
• A voidable marriage whether or not it is subsequently annulled revokes any will already made by either party.
• An exception is made where the will is made in contemplation/expectation of marriage.

Question 6

Simpson v Foxon [1907] P 54

Answer 6

Three wills were in issue; none of the wills had any expressed revocation clause. Under the first will, there was a disposition of the entire estate, with the testator’s daughter appointed executrix, under the second will, it was prepared on a printed form commencing .“ This is the last and only will of me”; there was a legacy of insurance proceeds, and another executor was appointed, third will was described as “codicil to the last will”, - certain bequests were made, and other executors appointed.

The arguments were submitted to the court contending that the second will revoked the first, based on the declaration that it was the “only will”. The court examined and found that the reference to last and only will, did not suffice as an explicit revocation clause, and it was proper to examine all three instruments to see whether they could stand together.

The court reiterated the common law principle that subsequent wills do not automatically revoke prior wills, and where partial inconsistencies exist, then later will revokes only to the extent of those inconsistencies.

HELD: on the facts, while some earlier provisions were inconsistent, and would be revoked, these did not erode the foundation of the earlier instruments – there was no reason to preclude all three instruments from standing together and being admitted to probate.

Question 7

What is revival?

Answer 7

a concept whereby a Will or Codicil that has been revoked is resurrected and again made valid or given legal effect

Question 8

What section of the Wills Act speaks to Revocation by Marriage?

Answer 8

S. 16 (1) of the Wills Act:
A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage.

Question 9

In the case __________________
A testatrix had made a will about a month before her death and at a time when she was seriously ill. This Will was kept at a bank. The Testatrix wrote to the Bank Manager in whose custody the will had been placed as follows, “Will you destroy the will already made out”. The letter was signed and attested by two attesting witnesses in the same manner as a Will.

Issues:
(1) The question is, whether the Will is not revoked by the letter.
(2) When was the effective date of revocation

Holding:
As soon as the letter was duly executed, the Will was revoked within the Wills Act. Therefore if the testator wrote the letter and it was properly attested on the 5th and the bank burnt it on the 10th, the will would have been revoked from the 5th.

Answer 9

Re Spracklan’s Estate [1938] 2 ALL ER 345

Question 10

Name the case.

In this case, an earlier Will disposed of the entire estate. There was no express revocation clause in the later will, which made several dispositions as the earlier will; crucially, however, the later will failed to dispose of the residue.

In that case, it was proffered that since there was no revocation clause, and the later Will omitted to provide for the residue, then that will could not operate to revoke the former will; both instruments had to be read together as the last will of the testator.

This argument was rejected by the court; the fact that the subsequent will failed to cover all the dispositions of the former will did not preclude revocation. The court examined both instruments as a whole, holding that the earlier will could not stand.

For example; it noted that both instruments mandated trustees to discharge debts, funeral, and testamentary expenses, and inferred that the intention of the testator could not have been to pay these obligations/expenses twice.

HELD: It was clear that the testator intended the later will to be in substitution for, not in addition to the earlier will, which was revoked. Effect: residue devolved on intestacy.

Answer 10

In the Estate of Bryan [1907] P 125

Question 11

Can a later Will partially revoke an earlier will?

Answer 11

Yes. Where the inconsistency or repetition between testamentary documents is partial only, then those aspects of the prior document that are unaffected by the inconsistency/repetition are valid.

Question 12

Must the entire Will be destroyed for there to be destruction?

Answer 12

The entire will need not be destroyed, only so much as to impair the Will or remove the substratum. Thus, to destroy a will, you don’t need to burn or tear everything e.g. if you tear off the signing segment or the signing page of the will, this is sufficient and will amount to revocation by destruction. Hence, what is critical is that destruction affects the fundamental aspects of the will so that the will as a whole is undermined.

Question 13

How can the presumption of the intention to revoke (express revocation) be rebutted?

Answer 13

1. The revocation clause is subject to an express condition that is not satisfied. For example, if the clause was explicitly made conditional on a particular relative predeceasing the testator, then if that relative survives, the clause is not valid, and previous testamentary instruments still subsist.
2. The revocation clause was incorporated in the will by mistake. (Re Phelan [1972] Fam 33.)

Question 14

True or False.

Every codicil prima facie constitutes confirmation of a testator’s Will, unless proof of a contrary intention is demonstrated

Answer 14

True.

‘the theory of the law is, and always was, that a codicil forms part of a will and consequently, that to make a codicil to your will is first to affirm the existence of that will and secondly to republish or reaffirm its validity.’

Question 15

In the Goods of Dadds (1857) Dea & Sw 290, the testatrix directed someone to destroy her will, but the person left and destroyed the will in the kitchen while the testator remained in the bedroom.

What element of revocation by destruction was not satisfied?

Answer 15

The element of presence was not satisfied.

Question 16

True or False.

A Will intentionally destroyed, under the mistaken belief as to its legal effect is revoked.

Answer 16

False.

Question 17

True or False.

The revocation of a Will by a later Will, which is further revoked, automatically revives the earlier Will.

Answer 17

False.

Question 18

What is meant by express revocation?

Answer 18

Express revocation comes in the form of a revocation clause in a Will or Codicil. E.g “I hereby revoke all my previous Wills and Codicils”.

Where a revocation clause has been included in a Will or Codicil there is a presumption that the Testator intended to revoke his previous testamentary instrument. This presumption is rebuttable but the onus probandi rests on the person seeking to rely on such rebuttal.

Question 19

Generally, describe how a Will may be revoked by Destruction

Answer 19

• A will or codicil, or any testamentary document, whether in its entirety or any part may be destroyed, by burning, tearing, or otherwise destroying.
• The act may be carried out by the testator himself, or by someone else, in his presence and by his direction.
• revocation by destruction requires both:
  The physical act of destruction itself; and
  intention to revoke (animus revocandi)

Question 20

By using the words “unto my fiancée [MEB]” the testator was expressing the fact that he was contemplating marriage with that named person, and, therefore the Will was “expressed to be made in contemplation of a marriage” within the meaning of the Act, and was not revoked by the testator’s subsequent marriage.

The above principle came out of which case?

Answer 20

Re Langston [1953] P. 100

Question 21

What is the effective date of the Revocation of a Will?

Answer 21

The date that the revocatory instrument was duly executed

Question 22

“All the destroying in the world, without the intention will not revoke a will, nor all the intention in the world without destroying, there must be the two.”

This is the principle coming out of what case?

Answer 22

Cheese v. Lovejoy (1877) 2 PD 251, 253

Question 23

True or False.

A Will which was last in the Testator’s possession is presumed to have been destroyed and revoked by the testator.

Answer 23

True.

Sargeant [1975] Vol 27 W/R pg 40, per Lord CJ Douglas,
the point was made, the stronger the security of the testator’s custody, the stronger the presumption.

“if will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it.”

Question 24

What is the litmus test of revocation?

Answer 24

The courts will examine whether, in the circumstances, the prior instrument retains any life, meaning does it still serve any purpose? If it does, the instrument (or the relevant part) will be admitted to probate. This is referred to as the, “litmus test of revocation”, a term coined by Ian Wilkinson, Q.C.

Question 25

Give the principle arising from the case:
In re Durance (1872) LR 2 P & D (per Lord L. Penzance)

Answer 25

Issue:
‘The question is, whether the Will is not revoked by the letter. [YES]

Holding:
Lord Penzance said, at p 407:
If a man writes to another “Go and get my will and burn it,” he shows a strong intention to revoke his will. In the language of sect. 20 of the Wills Act, the letter is writing declaring an intention to revoke the will, and it is duly executed.’

Question 26

True or False.

A will destroyed accidentally does not fall within the requirements for revocation under the Wills Legislations.

Answer 26

True

Question 27

What is the statutory provision for Revival of Wills in Belize?

Answer 27

Section 20 of the Wills Act of Belize
No will or codicil or any part thereof which is in any manner revoked shall be revived, otherwise than by the re-execution thereof or by a codicil executed in accordance with section 7 and showing an intention to revive the same.

When any will or codicil which is partly revoked and afterward wholly revoked is revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.

Question 28

What are the requirements for Revival of Will or Codicil to be Effective?

Answer 28

The Will or Codicil must be physically in existence before it can be revived.

There must be an intention to revive the Will or Codicil

The formal act of Revival
There must be re-execution of the instrument to be revived or revival by way of a different Will or Codicil.

Question 29

How is republication effected?

Answer 29

By the re-execution of the original will
(Dunn v Dunn (1866) LR 1 P& D277) OR

By the making of a duly executed codicil to the will containing some reference to the will.
(Re Smith (1890) 45 ChD 632)

Question 30

What is republication?

Answer 30

the process where a will is confirmed and made to take effect as if it had been executed at the subsequent date (date of republication) and NOT when it was originally executed.

Question 31

Sugden v Lord St. Leonards [1876]c1 PD 154

Answer 31

Where a will cannot be found after the testator’s death, but was last known to have been in his possession, it will be presumed to have been destroyed by the testator with the intention to revoke it.

First, the strength of the presumption varies with the closeness of the custody. Secondly, declarations by a testator of his adherence to the will are admissible in evidence to rebut the presumption, as an exception to the general rule excluding hearsay evidence.
That case also held that:

• The contents of a lost will, like those of any other lost instrument, may be proved by secondary evidence.
• Declarations written or oral, made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of its contents
• The contents of a lost will may be proved by the evidence of a single witness, though interested, whose veracity and competency are unimpeached.
• When the contents of a lost will are not completely proved probate will be granted to the extent to which they are proved.

Question 32

What Section of the Wills Act deals with revocation of Wills?

Answer 32

Section 18 of the Wills Act

Question 33

Generally, describe how a Will may be revoked by Written Revocation.

Answer 33

Revocation by this method requires formal writing

There must be compliance with the formalities prescribed under the Wills Act for the execution of a will. There is no departure from this requirement.

It is not the actual destruction that revokes the will, but rather the writing duly executed with the requisite intention to revoke by the testator/testatrix.

Question 34

What is revocation?

Answer 34

It is the formal act of making or rendering a will or codicil invalid, null and void (of no legal effect)

Question 35

Name the case.

The Testator, having erased a clause in his will after the execution, asked a friend to make a fresh copy of the will, omitting the erased clause. The copy was made, but the person who made it by mistake omitted several other clauses. The copy was duly executed, and the omissions were not discovered until after the testator’s death, both wills having remained in his custody up to that time. The two wills were not inconsistent with each other, and the latter contained no express clause of revocation. Probate was granted of both documents upon evidence of the circumstances under which they were drawn up and executed, as together containing the deceased’s last will and testament. I repudiate the notion that there are any particular words, or any particular forms of expression, on which one’s finger can be put as a universal test of revocation (Sir JP Wilde).

Answer 35

Birks v Birks (1865) 29 JP 360, 34 LJPM & A 90

Question 36

List three purposes of republication

Answer 36

1. Validates a will which was not valid at the time of execution due to:
   Want of formalities and/or
   The testator’s unsoundness of mind

Conditional on:
The will or codicil being duly executed; and
The testator recovering his testamentary capacity at the time the will is republished

2. Can save a gift made to a witness or the spouse of that witness which would otherwise be void. On the condition that:
   Re- execution of the will or codicil is not attested by the same class of witnesses
3. Republication of a will can validate unattested alterations
   if the will is republished by a codicil, the codicil must refer to the unattested alterations otherwise it is presumed that they were both made after the will and the codicil which publishes it.

Question 37

Give brief facts and the principle coming out of the case:
Re Aynsley – The times (6th February, 1973 –Megarry, J)

Answer 37

Facts:
The Testatrix who was old and confused tore her will into 40 pieces.

Issue:
Whether an insane person can revoke Will by destruction.

Holding:
The Will was put back together and Megarry J decided that the Will was to be admitted to probate because the testatrix lacked the mental capacity to revoke and the Will was therefore still valid. Insanity nullified animus revocandi to revoke a will.
Thus, the same mental capacity required to make a Will is also required to destroy the Will.

Question 38

Sotheran v Dening (1881) 20 Ch D. 99

Answer 38

A general clause in a will revoking all former wills revokes a prior testamentary appointment.

A married woman having a general power of appointment by will over real estate executed a will appointing the estate. After the death of her husband, she made another will revoking all former wills and containing a general devise and bequest of all her real and personal estate. She afterwards made a third will, also revoking all former wills, and bequeathing her personal estate, but not devising or appointing her real estate. She had no real estate except that subject to her power of appointment:-

Held (affirming the decision of the Master of the Rolls), that the testamentary appointment under the first will was revoked by the second will, and the second will by the third, and that the real estate went as in default of appointment.

“In my opinion, it is plain that a revocation, when it is clear in words, has the effect of revoking all former wills just as if they had never existed: it must be considered as leaving no operation whatever to any former will.”

Question 39

A testator removed a will made in favour of his sister-in-law from his solicitors, stating his intention to destroy it, on the basis that he had nothing to leave. He later inherited his sister’s estate upon her intestacy. He made no further will. Upon his death, his sister-in-law moved the court to admit a copy of the earlier will to probate.

Held the testator’s act of revocation was conditional on his having nothing to leave, but he had forgotten his possible entitlement on his sister’s death. The doctrine of dependent relative revocation applied, and the will would be admitted to probate.

Answer 39

Carey, Re (1977) 121 Sol Jo 173

Question 40

Name the case.

The testator, Evan Jones, by his Will dated June 27, 1927, appointed his two daughters, Mrs. Muriel Ceinwen Sallis and Mrs. Irene Sylvania Evans, his executrices and residuary legatees. He also, in the final sentence of the Will, declared “that this will is made in contemplation of marriage.”
On November 27, 1927, the Testator married his second wife. He died on November 17, 1934, and his second wife survived him.

Issue:
Whether a Will made in contemplation of marriage is revoked by Marriage where the Will made contains a reference to marriage generally

Holding:
The will propounded by the plaintiffs was revoked by the subsequent marriage of the deceased.
In order for the Will not to be revoked by marriage, it must contain an express reference to that particular marriage.
“It is plain, in my judgment, upon the strict construction of s. 177 of the Act of 1925, that it has no operation unless there is found in the will something more than a declaration containing a reference to marriage generally. All that is to be found in the present will is a declaration that the will was made “in contemplation of marriage” and nothing more.”

Answer 40

Salis v Jones [1936] P. 43

Question 41

What is Animus Revocandi?

Answer 41

Refers to the mental state of the testator or his intentions

the intention to revoke the will or codicil must be present at the time of the act of revocation, whether by destruction or otherwise

Revocation can never occur without animus revocandi (mental requirement)

Question 42

The Testator drew pen through lines of various parts of his Will and wrote on the back that it was revoked and threw it in the garbage. His servant T found it and placed it in the kitchen and remained there for 7 years until the Testator’s death.

Was the Will revoked?

Answer 42

NO.
The Will was not revoked. The Will was not sufficiently destroyed to amount to revocation by destruction. There must be actual destruction and not a symbolic act.
(Cheese v. Lovejoy (1877) 2 PD 251, 253)

Question 43

What is meant by Implied Revocation?

Answer 43

The general principle is that where a later will or codicil does not contain a Revocation Clause, the later will (or clause) revokes the earlier one (partially or wholly), to the extent of any inconsistency.

If there is total reproduction of the earlier will, or the later will is totally incompatible with the earlier will, then the earlier will is totally revoked.

If there is no inconsistency between or among valid testamentary instruments, they will all be admitted into probate.

Question 44

Does marriage revoke Privileged Will?

Answer 44

Yes.

In the Estate of Wardrop [1917] P. 54

ISSUE: The will of a soldier on actual military service, whether same be executed according to sections 9 or 11 of Wills Act 1837 (c 26), or not, falls within the general provisions contained in section 18 of that Act and is revoked by testator’s subsequent marriage.
HELD: Wills made by soldiers and sailors were revoked by the subsequent marriage of the testator.

Question 45

True or False:

A Will which is destroyed in the testator’s presence but without his direction to do so is revoked if the Testator subsequently ratifies the destruction.

Answer 45

False

In Gill v Gill (1909) Probate 152
Husband’s Will was torn up by his wife in a fit of temper.
The court held that the Will was not revoked.
The destruction of the Will was not done by the testator’s direction although in his presence.

Question 46

What are the requirements for confirmation/republication of a Will?

Answer 46

What courts require for confirmation is that the codicil contains some reference to the will. So the reference may be explicit, as where the codicil, after setting out its provisions, ends with the declaration: “In all other respects, I confirm my will”.

It is sufficient, however, for a codicil to describe itself as a “codicil to my will”. Testator is deemed to have had the will in contemplation when executing the codicil, and so the will is confirmed.

Thus, in order to republish a will, a codicil need not have words of express republication, reference to the Will being republished is sufficient, for example, “… this is a codicil to my Will dated May 24, 2005.”

Question 47

True or False.

The witnesses to the original execution do not need to be the same when the will is being re-executed or republished.

Answer 47

True

Question 48

What is conditional Revocation?

Answer 48

A will, or any part thereof, may be revoked “conditionally”, that is upon a condition being met.

If the condition is not met the clause or Will remains in effect.

When the revocation is conditional upon the validity of another will or codicil it is called the doctrine of Dependent Relative Revocation.

It is said that Conditional Revocation and Dependent Relative Revocation are essentially the same things.

Question 49

Generally, describe how a Will is revoked by another Will or Codicil

Answer 49

Answer may include:

A Will may be revoked by a subsequent will or codicil, but the subsequent Will or Codicil should be executed in compliance with the formalities required under the Wills Act (S7).

Effective revocation by this mode may be either express or implied.

Question 50

When revoking a will, a testator/testatrix must do all he/she intended to do. In the case, _____________________, the testator was angry with a devisee under his will, upon being restrained, he stopped tearing the will, after the Will was torn into 4 pieces.

HELD: No revocation of the Will. Testator had not completed the act of destruction and had not followed through an initial intention to destroy the Will.

Answer 50

Perkes v Perkes (1820) 3 B & Ald 489.

Question 51

Can a Will revoked by destruction be revived?

Answer 51

No.
Because the Will has to be in existence.