Our partner Michael looks at what makes a will and how they work, starting with revocation. Michael specialises in wills and inheritance disputes which means he is well positioned to explain this area and consider what happen when things go wrong.
The execution of a will, in most circumstances, revokes an earlier one. A revocation clause, usually found at the start of a will, ensures there can be no doubt that the testator wanted their new will to replace an earlier one.
If a new will revokes an old will, the date of the wills becomes very important; as such revocation clause or not, it’s always sensible to date your will.
John dies and his family find two wills. Both have a revocation clause and both are undated. One leaves ‘my home Pear Tree Cottage’ to John’s daughter Sophie and the other leaves the entire estate to John’s son Tom. Does Sophie get the house or does Tom get everything including Pear Tree cottage?
As both wills have been correctly executed there is no easy answer. If Sophie and Tom can’t reach an agreement, then the most likely result will be the need to involve the court to decide which will is the newer one. This isn’t a simple task and could take many years to resolve.
The inclusion of dates would have meant that in terms of will validity, there would not have been a dispute.
Marrying or entering a civil partnership revokes an earlier will and divorce has the effect of a partial revocation.
A will can also be revoked by destruction. The most effective way to do this is for the old will (the original, signed one) to be physically destroyed, such as being cut up. If any copies are held these should be marked with the word ‘Revoked’.
Something I find interesting on this subject is the existence of a presumption that if the original, signed will was known to be in the possession of the testator but can’t be found upon their death, it is presumed that the person revoked their will by destruction. This presumption applies even if there is no evidence that they had changed their mind and even when copies are found in their possession.
This means that anyone saying the will was not revoked needs to be able to show that revocation was not the intention of the deceased (known as ‘rebutting the presumption’).
I have acted in a case where the presumption of revocation caused major difficulties, despite it being obvious to everyone that the person had not revoked their will – but rather it had gone missing from their home (for reasons unknown).
The presumption of revocation is one of many reasons why it is sensible to store a will with your solicitor. Here at Stokes Partners, we don’t charge for this service but the peace of mind it provides is incredibly valuable. The will remains yours and you can review it and change it at any time.
Please contact our Wills Trusts and Probate Team if you wish to review, renew or do a will.
The information contained in this article provides a general overview of the current position in relation to the subject matter. It does not constitute legal advice and should not be relied upon in relation to any specific legal problem.