Learning Outcomes
After reading this article, you will be able to explain how a will can be revoked by destruction under the Wills Act 1837, identify the legal requirements for a valid revocation by destruction, distinguish between absolute and conditional revocation, and apply key case law and statutory principles to SQE1-style scenarios. You will also understand the role of testamentary capacity and intent in this context.
SQE1 Syllabus
For SQE1, you are required to understand the rules and practical implications of revocation of wills, including revocation by destruction. Focus your revision on:
- the statutory requirements for revocation by destruction under the Wills Act 1837
- the need for both a physical act and intent to revoke
- the importance of testamentary capacity at the time of revocation
- the legal consequences of partial destruction, conditional revocation, and missing wills
- how courts treat evidence and presumptions relating to revocation by destruction
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What two elements must be present for a will to be validly revoked by destruction?
- If a will is last known to be in the testator’s possession but cannot be found after death, what is the legal presumption?
- Can a will be revoked by destruction if the testator lacks testamentary capacity at the time of destruction?
- What is the effect if only part of a will is destroyed, such as the signature or a key dispositive clause?
Introduction
Revocation by destruction is one of the main ways a valid will can be revoked in England and Wales. For SQE1, you must know the statutory requirements, the need for both a physical act and intent, and the consequences of partial or conditional revocation. This article explains the law, key terms, and common pitfalls.
Statutory Requirements for Revocation by Destruction
A will can be revoked by destruction under section 20 of the Wills Act 1837. The law requires two elements:
- A physical act of destruction (such as burning, tearing, or otherwise destroying the will)
- A concurrent intention to revoke the will at the time of the act
Both elements must be present. Destruction alone, or intent alone, is not sufficient.
Key Term: revocation by destruction The process by which a will is cancelled through a deliberate physical act (burning, tearing, or otherwise destroying) performed by the testator (or by someone else in their presence and at their direction), with the intention to revoke the will.
The Physical Act
The act of destruction must be significant. Minor defacement or crossing out is not enough unless it renders the will, or a material part of it, inoperative. Acceptable acts include burning, tearing, shredding, or otherwise making the will unusable.
Key Term: physical act of destruction A deliberate action by the testator (or by another in their presence and at their direction) that materially damages or destroys the will document.
The Intention to Revoke
The testator must intend to revoke the will at the time of destruction. Accidental destruction, or destruction without intent to revoke, does not revoke the will.
Key Term: intention to revoke The clear, conscious decision by the testator to cancel the will, which must exist at the moment the will is physically destroyed.
Testamentary Capacity
The testator must have testamentary capacity at the time of revocation. If the testator lacks capacity (for example, due to mental illness or intoxication), the revocation will be invalid.
Key Term: testamentary capacity The legal ability to make or revoke a will, requiring understanding of the act, the extent of property, and the claims of potential beneficiaries.
Who Can Destroy the Will?
Destruction must be carried out by the testator or by someone else in the testator’s presence and at their direction. If someone destroys the will without the testator’s authority, the will is not revoked.
Partial Destruction
If only part of the will is destroyed, the effect depends on what was destroyed and the testator's intention. Destroying a material part, such as the signature or a dispositive clause, may revoke the whole will if that was the testator’s intention. If the will remains operative and makes sense, the remaining parts may still be valid.
Worked Example 1.1
A testator tears their will in half in front of a witness, saying, "I don't want this will anymore." The signature and main clauses are destroyed. Is the will revoked?
Answer: Yes. The testator performed a physical act of destruction with clear intent to revoke. The destruction of the signature and main clauses is sufficient to revoke the will.
Presumption of Revocation
If a will was last known to be in the testator’s possession and cannot be found after their death, the law presumes the testator destroyed it with the intention to revoke. This presumption can be rebutted by evidence (e.g., accidental loss, or someone else destroyed it).
Key Term: presumption of revocation The legal assumption that a missing will, last known to be in the testator’s possession, was destroyed by the testator with intent to revoke.
Worked Example 1.2
A will was kept in the testator’s desk. After the testator’s death, the will cannot be found. What is the legal position?
Answer: The law presumes the testator destroyed the will with intent to revoke. However, this can be rebutted if there is evidence the will was lost or destroyed accidentally.
Conditional Revocation (Dependent Relative Revocation)
Sometimes, a testator destroys a will intending to replace it with a new one. If the new will is invalid, the court may treat the destruction of the old will as conditional on the new will being valid. If the condition fails, the old will may be revived.
Key Term: conditional revocation (dependent relative revocation) A revocation that is only effective if a specific condition is met (e.g., a new will is valid). If the condition fails, the revocation may be disregarded.
Worked Example 1.3
A testator destroys their old will after signing a new will. The new will is later found to be invalid due to lack of witnesses. What is the effect?
Answer: The court may treat the destruction of the old will as conditional on the new will being valid. If the new will is invalid, the old will may be admitted to probate.
Case Law Highlights
- Cheese v Lovejoy (1877): Writing "cancelled" on a will and crossing out parts was not enough—no physical destruction occurred.
- Re Adams [1990]: Removing the signature from a will was sufficient destruction to revoke the will.
- Doe d. Perkes v Perkes (1820): Tearing a will into pieces, but stopping before completion, was not enough—revocation was incomplete.
Exam Warning
For SQE1, remember that both a physical act and intent to revoke must be present at the same time. Accidental destruction, or destruction without intent, does not revoke a will. Capacity is also essential.
International and Cross-Border Issues
If the testator owns property in other jurisdictions, local law may affect whether revocation by destruction is recognised. For real property abroad, the law of the property's location may apply.
Key Point Checklist
This article has covered the following key knowledge points:
- Revocation by destruction requires both a physical act and intent to revoke.
- The act must be performed by the testator or by another in their presence and at their direction.
- Testamentary capacity is required at the time of revocation.
- Partial destruction may revoke the whole will if material parts are destroyed and that was the testator’s intention.
- If a will cannot be found after death, there is a presumption of revocation, but this can be rebutted.
- Conditional revocation may apply if the testator intended the revocation to depend on a new will being valid.
- Accidental destruction or destruction without intent does not revoke a will.
Key Terms and Concepts
- revocation by destruction
- physical act of destruction
- intention to revoke
- testamentary capacity
- presumption of revocation
- conditional revocation (dependent relative revocation)
