Revocation of wills - Revocation by later will or codicil

Learning Outcomes

This article explains revocation of wills by later will or codicil, including:

• the statutory bases for revocation by a later will, codicil, or other s.20 “writing”, and how these interact with other forms of revocation
• the distinction between express and implied revocation, with illustrations of when a comprehensive residuary gift will revoke earlier dispositions and when earlier provisions can still operate
• the formal requirements for a valid revoking instrument, covering execution under s.9, testamentary capacity, intention to revoke, and knowledge and approval
• the role of codicils in effecting full or partial revocation, varying gifts and appointments, and republishing the will as at the codicil date
• the difference between revival and republication, the strict limits on revival under Wills Act 1837, s.22, and why destruction of a later will is insufficient
• how republication by codicil can cure certain witnessing defects under s.15 and affect the “effective date” from which the will speaks
• the effect of an invalid or ineffective later will or codicil, and why it generally leaves an earlier valid will untouched
• techniques for construing multiple wills and codicils together, identifying the extent of any implied revocation and residual operation of earlier instruments
• the doctrine of dependent relative (conditional) revocation and its targeted use by the courts where a revocation was intended to be conditional.

SQE1 Syllabus

For SQE1, you are required to understand the legal rules and practical implications of revocation of wills by later wills or codicils, with a focus on the following syllabus points:

• the statutory requirements for revocation by later will or codicil
• the difference between express and implied revocation
• the effect of codicils on previous wills
• how partial revocation can occur
• the importance of proper execution and testator capacity for revocation
• the limits on revival of a revoked will and how revival is achieved
• republication by codicil and its consequences (including curing certain witnessing issues)
• the operation of dependent relative (conditional) revocation where a revocation was intended to be conditional
• how a later invalid will or codicil affects revocation (it does not)
• how to construe multiple wills: reading together, inconsistency, and residual operation of earlier provisions.

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.

1. What is required for a later will to validly revoke an earlier will?
2. Can a codicil revoke only part of a previous will? If so, how?
3. If a new will does not contain a revocation clause but disposes of the entire estate, what is the effect on any earlier will?
4. True or false: A later will always revokes all previous wills, even if it is not properly executed.

Introduction

Revocation of a will is the legal process by which a testator cancels or withdraws a previous will. For SQE1, you must understand how a later will or codicil can revoke an earlier will, either expressly or by implication, and the requirements for such revocation to be effective. This article explains the key principles, statutory rules, and practical consequences of revocation by later will or codicil.

Key Term: revocation
The legal act of cancelling or withdrawing a will or part of a will, so that it no longer has legal effect.

While a will can also be revoked by marriage or civil partnership (subject to the statutory “in contemplation” exception) and by destruction, this article focuses on revocation by later will or codicil (Wills Act 1837, s.20), with close attention to validity, partial revocation, revival, and codicils.

Revocation by Later Will or Codicil: The Statutory Framework

A will can be revoked in several ways, but the most common in practice is by making a later will or codicil or by “some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed” (Wills Act 1837, s.20). Revocation by a later testamentary instrument depends on strict compliance with formalities and on the testator’s capacity and intention.

Key Term: codicil
A testamentary document executed with the same formalities as a will, used to alter, add to, or revoke part of an existing will. A codicil generally republishes the will.

Express Revocation

A later will or codicil may contain an explicit statement revoking all previous wills and codicils. This is known as express revocation.

Key Term: express revocation
A clear, written statement in a will or codicil declaring that previous wills and codicils are revoked.

Requirements for Express Revocation

For an express revocation to be valid:

• The later will or codicil must be executed in accordance with s.9 Wills Act 1837 (in writing; signed by the testator or by someone in the testator’s presence and at their direction; intended to give effect to the will; and attested by two witnesses present at the same time).
• The revocation clause must clearly state the intention to revoke previous wills and codicils (e.g., “I revoke all former wills and testamentary dispositions made by me”).
• The testator must have testamentary capacity and knowledge and approval of the revocation clause, and must intend revocation.

Practical drafting point: where a testator has foreign wills dealing with overseas property, the revocation clause should be tailored to avoid unintentionally revoking those instruments, or else except them expressly.

Implied Revocation

A later will or codicil may revoke an earlier will by implication where the provisions of the later instrument are inconsistent with the earlier one.

Key Term: implied revocation
Revocation that arises when a later will or codicil is inconsistent with an earlier will, so that the provisions cannot stand together.

How Implied Revocation Occurs

Implied revocation typically happens when:

• The later will disposes of the entire estate (especially the residue) using terms inconsistent with the earlier will, leaving nothing for the earlier will to operate on.
• Specific provisions in the later instrument contradict earlier provisions, revoking those parts only (partial implied revocation).

Where some provisions are consistent and others conflict, the wills are read together and only the inconsistent parts of the earlier will are treated as revoked. Where the later will contains a comprehensive residuary clause, it will usually impliedly revoke the earlier residuary disposition, even without an express revocation clause. However, if the later will disposes only of particular items and contains no residuary gift, the earlier will may continue to operate for the remainder of the estate.

Revocation by Codicil

A codicil is often used to make targeted changes without replacing the entire will. Codicils can revoke, vary, or add provisions and will normally “republish” the will as of the date of the codicil.

A codicil can:

• Expressly revoke all previous wills and codicils (though that is more commonly done by a new will).
• Expressly revoke identified clauses or gifts (partial revocation).
• Impliedly revoke earlier provisions by making inconsistent changes.
• Confirm or restate the existing will, thereby republishing it as of the codicil date.

Republishing effect: a duly executed codicil confirms the will and is treated as re-dating it to the codicil date, which can be significant for interpretation, anti-lapse provisions, and issues such as whether a beneficiary who witnessed the original will may still take if a later codicil (validly executed without that beneficiary as a witness) republishes the gift.

Key Term: partial revocation
The cancellation of only part of a will, so that the remaining provisions continue to have effect.

Requirements for a Valid Revocation

For any revocation by later will or codicil to be effective:

• The later document must comply with s.9 Wills Act 1837.
• The testator must have the mental capacity and intention to revoke, and knowledge and approval of the instrument.
• A purported revocation that is conditional will only operate if the condition is satisfied (see “dependent relative revocation” below).
• An invalid later will or codicil has no revocatory effect; the earlier valid will remains operative.

Key Term: dependent relative revocation
A doctrine under which a revocation (usually by later will or codicil, or by destruction) is treated as conditional, so that if the condition fails (e.g., the later instrument is ineffective), the revocation is disregarded and the earlier instrument can continue to operate.

Revival and Republication: Do Not Confuse Them

Two further concepts are regularly tested and frequently confused:

• Revival: Once a will has been revoked (for example, by a later will), it is not revived merely because the later will is itself revoked or lost. Under Wills Act 1837, s.22, a revoked will can be revived only by re-execution or by a codicil executed in accordance with s.9 that shows an intention to revive. This is distinct from reading multiple wills together.
• Republication: A codicil that confirms a will generally republishes it, so the will is treated as made at the date of the codicil. Republication does not “revive” a will that no longer exists or has been revoked prior to the codicil unless the codicil expresses an intention to revive in compliance with s.22.

Key Term: revival
The revalidation of a revoked will. A revoked will is not revived except by re-execution or by a codicil executed with the formalities of a will and indicating an intention to revive.

Key Term: republication
The effect whereby a codicil confirms and re-dates a will as at the date of the codicil; the will “speaks” from the codicil date for many purposes.

Interactions to Watch

• Invalid later instrument: No revocation. If a 2024 will lacks s.9 formalities or capacity, it does not revoke a valid 2018 will.
• Lost or destroyed later instrument: If the later instrument was valid when executed and it expressly or impliedly revoked the earlier will, the earlier will remains revoked unless revived in accordance with s.22. The mere loss or destruction of the later will does not reinstate the earlier will.
• Codicil “curing” a witness issue: A later codicil that confirms a will and is validly executed without the disqualifying witness can allow a gift that previously failed under s.15 (beneficiary/spouse witnessing) to take effect via republication.

Worked Example 1.1

A testator makes a will in 2015 leaving all assets to a friend. In 2021, the testator makes a new will that leaves the house to a niece and the residue to charity, but does not mention the earlier will or include a revocation clause. What is the effect?

Answer:
The 2021 will impliedly revokes the 2015 will to the extent that its provisions are inconsistent. The gift of the house to the friend in the 2015 will is revoked, but any part of the estate not disposed of by the 2021 will could still pass under the 2015 will if there is no complete inconsistency.

Worked Example 1.2

A testator makes a will in 2018 leaving everything to a spouse. In 2022, the testator makes a new will with a revocation clause: "I revoke all former wills and codicils." The 2022 will is properly executed. What is the effect?

Answer:
The 2022 will expressly revokes the 2018 will. Only the 2022 will takes effect on the testator's death.

Worked Example 1.3

A testator executes a codicil in 2023 that states: "I revoke clause 4 of my will dated 1 January 2020." The codicil is properly executed. What is the effect?

Answer:
The codicil revokes only clause 4 of the 2020 will. The rest of the will remains valid and operative.

Dependent Relative (Conditional) Revocation in the “Later Instrument” Context

Although often discussed in the context of destruction, conditional revocation also arises where a testator includes a revocation clause in a later will or codicil on the assumption that the new dispositions will be effective. If the later instrument fails (for example, for want of due execution or because a critical gift in it is void and the court construes the revocation clause as conditional on that gift), the revocation may be disregarded and the earlier will (or unaffected parts of it) may still operate.

This is a rule of construction applied sparingly on clear facts indicating conditional intent. It cannot be used to rewrite the testator’s intentions or to revive a revoked will contrary to s.22 where there is no basis for the condition.

Worked Example 1.4

T’s 2017 will leaves residue to A. In 2024 T executes a new will with a revocation clause leaving residue to B described ambiguously so that the gift fails for uncertainty. Can the 2017 will operate?

Answer:
The court may construe the revocation clause as conditional on the new residuary gift taking effect. If that central gift fails and the facts show T intended the revocation to be dependent on the later dispositions working, the 2017 will can continue to operate for residue. This is an application of dependent relative revocation.

Republication by Codicil and Witnessing Issues

A codicil validly executed without the involvement of a beneficiary (or their spouse/civil partner) who witnessed the original will can, by republication, allow a gift previously void under s.15 to stand. This occurs because the will “as republished” is treated as executed at the date of the codicil, at which point the disqualifying witness did not attest. Care is needed to ensure the codicil genuinely confirms the earlier gift and is duly executed.

Worked Example 1.5

W’s 2020 will gives £10,000 to D. D’s spouse witnessed the 2020 will, so the gift to D fails under s.15, although the will remains valid. In 2023, W executes a codicil confirming the will without any involvement of D or D’s spouse. What is the effect?

Answer:
The 2023 codicil republishes the will. The gift to D is treated as made at the 2023 codicil date and is not tainted by the earlier witnessing; the gift can take effect.

Revival: When (and Only When) It Occurs

If Will 2 revoked Will 1, Will 1 does not revive merely because Will 2 is later revoked by destruction or is lost. Revival requires:

• re-execution of Will 1 in compliance with s.9; or
• a codicil executed in compliance with s.9 that clearly indicates an intention to revive Will 1 (Wills Act 1837, s.22).

Without this, Will 1 remains revoked.

Worked Example 1.6

Will 1 (2019) leaves the estate to E. Will 2 (2022), duly executed with a revocation clause, leaves the estate to F. In 2024, T destroys Will 2. Is Will 1 revived?

Answer:
No. Destruction of Will 2 does not revive Will 1. Revival requires re-execution of Will 1 or a codicil executed in accordance with s.9 showing an intention to revive Will 1.

Additional Practical Points on Multiple Instruments

• Reading together: If the later document lacks a comprehensive residuary disposition and there is no express revocation clause, provisions from the earlier will may still apply. The instruments are construed together, subtracting only the inconsistent earlier provisions.
• Executors and trustees: A later codicil can revoke or vary appointments in the will (for example, removing or adding executors) without disturbing other gifts.
• “Some writing”: Although this article focuses on later wills and codicils, s.20 also allows revocation by “some writing” executed with s.9 formalities. In practice, if you can meet s.9, a codicil or a new will is usually preferable to an ad hoc memorandum.

Exam Warning

If a later will or codicil is not validly executed, it does not revoke an earlier will. An invalid later will or codicil is ignored, and the earlier will remains effective.

A revoked will is not revived merely because a later revoking will is destroyed or lost. Revival requires re-execution or a codicil executed in accordance with s.9 that evidences an intention to revive (Wills Act 1837, s.22).

Revision Tip

Always check for a revocation clause in a new will. If absent, consider whether the new will disposes of the entire estate or is inconsistent with the earlier will.

Where a codicil appears, consider both (a) whether it revokes or varies the will (even partially) and (b) whether it republishes the will so that the effective date of the will changes and previous attestation issues may be cured.

Summary

Additional key rules:

• A later invalid will/codicil does not revoke a valid earlier will.
• A revoked will is not revived unless by re-execution or a reviving codicil (s.22).
• A codicil generally republishes the will, potentially curing some earlier witnessing defects for gifts, provided the codicil is duly executed.
• Conditional revocation may preserve an earlier will where the later instrument fails and the revocation was intended to be dependent on its effectiveness.

Key Point Checklist

This article has covered the following key knowledge points:

• A will may be revoked by a later will or codicil, either expressly or by implication.
• Express revocation requires a clear revocation clause and proper execution.
• Implied revocation arises where a later will or codicil is inconsistent with an earlier will; only inconsistent parts are revoked if provisions can otherwise stand together.
• A codicil can revoke all or part of a will, or confirm the rest; a codicil generally republishes the will as at the codicil date.
• Proper execution, capacity, knowledge and approval, and intention are essential for a valid revocation.
• If a later will or codicil is invalid, the earlier valid will remains effective.
• Revival of a revoked will requires re-execution or a reviving codicil indicating an intention to revive; destruction or loss of the later will is not enough.
• The doctrine of dependent relative (conditional) revocation may preserve an earlier will where the revocation in a later instrument was intended to be conditional on its effectiveness.

Key Terms and Concepts

• revocation
• express revocation
• implied revocation
• codicil
• partial revocation
• dependent relative revocation
• revival
• republication