Revocation of wills - Revocation by later will or codicil

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Overview

Understanding how a will can be revoked by a subsequent will or codicil is vital for SQE1 FLK2 exam candidates. This area of estate planning law requires a thorough understanding of the legal processes that allow testators to change or cancel their testamentary wishes. Understanding these concepts is essential for ensuring a testator’s final desires are recognized and for handling potential probate disputes. This article delves into the legal principles, statutory requirements, and case law that govern will revocation, equipping students with the knowledge needed for both exam success and future legal practice.

Express Revocation

Express revocation happens when a testator clearly states their intent to revoke a previous will through a new document. Section 20 of the Wills Act 1837 outlines the formal requirements for this process.

Legal Requirements for Express Revocation

To achieve an express revocation, these criteria must be met:

  1. The new document must be executed as per Section 9 of the Wills Act 1837.
  2. The revocation clause must clearly state the testator’s intent to revoke all previous wills.
  3. The testator must have the mental capacity to make the revoking document.

A typical revocation clause might read:

"I hereby revoke all former wills and testamentary dispositions made by me at any time heretofore."

It’s important to realize that making a new will doesn’t automatically revoke all previous ones unless it includes an express revocation clause or is completely inconsistent with the earlier will.

Case Law Example

In Re Hawksley's Settlement [1934] Ch 384, the court ruled that a codicil explicitly revoking "all former and other wills" effectively revoked not only the testator’s will but all previous codicils as well. This case highlights the importance of precise language in revocation clauses and their extensive effects.

Implied Revocation

Implied revocation occurs when a later will or codicil doesn’t explicitly revoke earlier documents but is so inconsistent with them that they cannot coexist. This principle follows the idea that newer provisions overrule older ones.

Criteria for Implied Revocation

Courts look at these factors to decide if implied revocation has happened:

  1. The inconsistency between the documents
  2. The testator’s apparent intent, as inferred from the documents
  3. How completely the later document disposes of the estate

Partial Revocation

A later will can sometimes revoke only part of an earlier will. In these cases, the documents are read together, with the later one taking precedence where they conflict.

Case Study: Partial Implied Revocation

Consider this situation:

Testator A makes a will in 2018, leaving their entire estate to Charity X. In 2021, A executes a new will giving their London property to their niece, without mentioning the rest of the estate or including a revocation clause.

Analysis: The 2021 will impliedly revokes the 2018 will only regarding the London property. The rest of the estate still goes to Charity X under the 2018 will. This illustrates partial implied revocation and the importance of careful drafting to prevent unintended outcomes.

The Role of Codicils

Codicils update specific parts of an existing will without needing a complete rewrite. They serve as amendments to the original will, allowing changes to be made.

Key Points about Codicils

  1. Formal Requirements: Codicils must follow the same formalities as wills, such as being in writing, signed, and witnessed.
  2. Effect on Original Will: Codicils update the original will from the date of the codicil, with changes taking precedence.
  3. Partial Revocation: Codicils can allow for partial revocation, altering specific parts of a will without affecting the rest.

Revocatory Effect of Codicils

The revocatory effect can be:

  1. Express: When the codicil explicitly revokes a will provision
  2. Implied: When the codicil’s provisions conflict with the original will

Case Law: Codicils and Revocation

In Re Reynolds [1952] Ch 1, the court found that a codicil revoking a specific legacy didn’t revoke the general gift to the same beneficiary. This case shows how carefully courts interpret codicils.

Marriage, Civil Partnership, and Revocation

Section 18 of the Wills Act 1837 (as amended) states that marriage or civil partnership automatically revokes a will made beforehand unless specific exceptions apply.

Key Considerations and Exceptions

  1. Automatic revocation occurs at marriage or civil partnership.
  2. Including a clause like "This will is made in contemplation of my marriage to [name]" keeps the will valid after marriage.
  3. Wills made under a power of appointment, where property wouldn’t go to the testator’s representatives upon intestacy, are unaffected by marriage.

Practical Application

Here’s an example:

Testator B, engaged to C, makes a will giving their estate to various charities. B includes this clause: "I declare that this will is made in contemplation of my forthcoming marriage to C and shall not be revoked by such marriage."

Outcome: When B marries C, the will remains valid due to the contemplation clause, preserving B’s charitable wishes.

Conclusion

Understanding will revocation by later wills or codicils is crucial for SQE1 FLK2 exam success and effective legal practice. Key points include:

  1. The difference between express and implied revocation
  2. The formal requirements for valid revocation under the Wills Act 1837
  3. The role and impact of codicils
  4. The automatic revocation effect of marriage or civil partnership, with exceptions
  5. The importance of clear drafting to avoid unexpected revocations

This knowledge helps future legal professionals handle complex estate planning scenarios, interpret wills accurately, and provide sound legal advice on testamentary issues. As estate law continues to develop, understanding these principles will be essential for addressing new challenges in will revocation and estate planning.