Learning Outcomes
This article covers the revocation of wills and codicils for SQE2 purposes, including:
- The statutory and common law methods of revocation: marriage/civil partnership, later will or codicil, written declaration, and destruction
- Revocation by operation of law on marriage or civil partnership and the "in contemplation of marriage" exception
- Execution requirements for valid revocation by new will/codicil and by written declaration
- Express versus implied revocation and the extent of inconsistency needed
- The evidential components of revocation by destruction: physical act and animus revocandi, and revocation by another at the testator’s direction and presence
- Presumptions and proof: missing original wills and the presumption of revocation; admitting copies to probate
- Consequences of revocation: revival of prior wills, intestacy where no valid will remains
- Partial and conditional revocation and the effect of failed replacement wills
- The effect of divorce or dissolution: gifts and appointments to the former spouse/partner treated as if predeceased
- Practical application to advising on validity of subsequent wills and codicils and assessing the risk of intestacy
SQE2 Syllabus
For SQE2, you are required to understand how and when a will can be revoked and the legal consequences flowing from revocation, with a focus on the following syllabus points:
- The available methods for revocation of a will or codicil.
- How revocation operates by law, especially on marriage or civil partnership.
- The requirements for valid revocation by destruction and by written declaration.
- The effect of revocation—whether by act of the testator, new will, or operation of law—on previously executed wills and on intestacy.
- How subsequent wills, codicils, or marriage/dissolution may impact existing testamentary arrangements.
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.
- When does marriage automatically revoke an existing will, and what are the main exceptions?
- What needs to be established to prove revocation of a will by destruction?
- Can a will be revoked by accident or mistake? What is the legal effect?
- If a later will is declared invalid, what is the status of any previous will?
Introduction
Wills can be freely revoked at any time before death, provided the testator has capacity and acts in accordance with legal requirements. Revocation has far-reaching effects, potentially altering the testamentary scheme or triggering intestacy. Understanding how, when, and by what means a will can be revoked—and the legal results—is essential for accurate client advice and for SQE2 assessment.
Methods of Revocation
A valid will may be revoked by several methods, but not all methods are equally available. The four main ways to revoke a will are:
- By marriage or civil partnership (operation of law).
- By valid execution of a new will or codicil containing an express or implied revocation clause.
- By a written declaration executed with the same formalities as a will.
- By destruction, provided the act and intention to revoke coincide.
Key Term: revocation
The legal process by which a will or codicil is cancelled or rendered ineffective, wholly or partially.
Revocation by Marriage or Civil Partnership
A will is automatically revoked if the testator subsequently marries or enters into a civil partnership, unless the will was made “in contemplation” of that specific marriage or partnership, and this intention appears in the will itself.
Key Term: operation of law
An automatic legal effect that arises by statute or legal principle, regardless of the parties' intentions.
If the will is silent on the point, the law presumes revocation on marriage/civil partnership, potentially leaving the testator intestate unless an exception applies.
Key Term: contemplation of marriage
Express reference within a will that it is made in anticipation of marriage to a named individual and intended to survive that marriage.
Worked Example 1.1
Yusuf writes his will in 2021, leaving everything to his siblings, but in 2023 he marries Sophia. The will does not mention his upcoming marriage. Has Yusuf’s will been revoked?
Answer:
Yes, Yusuf’s will is automatically revoked by the marriage. The one exception—an express declaration that the will is made in contemplation of marriage—does not apply.
Revocation by New Will or Codicil
The most straightforward method of revocation is by executing a new valid will or codicil with an express revocation clause. Even absent an explicit statement, a new testamentary document inconsistent with an earlier will can revoke it by implication, but only to the extent of the inconsistency.
Key Term: codicil
A supplementary testamentary document that alters, adds to, or revokes provisions of a previously executed will.
When a later will is found to be invalid, any express revocation clause in that document may or may not be effective—leading to possible intestacy if no earlier valid will remains.
Worked Example 1.2
Amira makes a will in 2018 and another in 2022 expressly revoking all previous wills. The 2022 will is later found invalid. Do the prior will or intestacy rules apply?
Answer:
If the 2022 will is invalid and the revocation clause is not effective, probate may be granted to the 2018 will provided it is valid. If not, intestacy results.
Revocation by Written Declaration
A will can also be revoked by a written declaration, as long as it is made with the same formalities required for a will (i.e., in writing, signed by the testator in the presence of two witnesses).
Revocation by Destruction
Revocation by destruction requires two elements: a physical act (such as burning, tearing, or otherwise destroying the will) and a simultaneous intent to revoke.
Key Term: animus revocandi
The specific intention to revoke a will or codicil.
Both elements must be satisfied for the revocation to be effective. If the testator destroys the will by accident, by mistake, or without the intention to revoke, the revocation is ineffective. If the will is destroyed by another person, it is only effective if done at the direction and in the presence of the testator.
Key Term: presumption of revocation
If a will last known to be in the testator’s possession cannot be found on death, there is a presumption that the testator destroyed it with the intention of revoking it.
Worked Example 1.3
Liam wishes to revoke his will and tears it up in the presence of his friend Tariq, saying, "I don’t want this to have any effect." Liam dies without making another will.
Answer:
Liam has revoked his will by destruction. The physical act and intention coincide, so the will is revoked, and the estate will be distributed on intestacy.
Consequences of Revocation
Revocation of a will (or codicil) renders it legally inoperative. If there is a previous valid will, that will may take effect provided it was not itself revoked. If no prior will exists or if earlier wills were also revoked (or destroyed), the deceased will die intestate.
Partial Revocation and Conditional Revocation
Revocation may sometimes be partial (affecting only part of a document) or conditional upon an event. If a testator destroys a will, intending to make a new one but does not, the original revocation still stands unless evidence shows the act was conditional upon the new will being executed.
Effect of Marriage Dissolution and Divorce
Divorce or dissolution of a civil partnership does not generally revoke a will. Instead, any gifts or appointments in favour of the former spouse or partner take effect as if they had died on the date of decree, unless the will provides to the contrary. This renders gifts and executorship appointments void, with the remainder of the will still valid, and subject to substitution or intestacy as relevant.
Revocation by Accident or Mistake
A will revoked by accident, by another person without the correct authority, or by the testator's mistake as to the legal effect, is not validly revoked. However, proof may be required, and sometimes a court application is necessary to resolve disputes.
Worked Example 1.4
Chloe accidentally destroys her only will, believing it to be an unimportant document. She dies without another will.
Answer:
If Chloe had no intention to revoke the will, it remains effective in law. If evidence supports this, an application can be made to admit a copy to probate.
Summary
- A will can be revoked by operation of law, by valid execution of a new will or codicil, by valid written declaration, or by destruction with intent.
- Marriage or civil partnership revokes a prior will unless made in contemplation.
- Divorce/dissolution does not revoke a will but voids gifts and appointments for the former spouse or partner.
- Destroying a will without intention or authority does not effect revocation.
- If all wills are revoked and none is valid, the deceased dies intestate.
Key Point Checklist
This article has covered the following key knowledge points:
- Revocation of wills can be effected by statute, by act of the testator, or by written declaration.
- Marriage or civil partnership generally revokes a prior will unless expressly contemplated.
- Dissolution or divorce do not revoke a will but have statutory effects on appointments and gifts.
- Destruction as a method of revocation requires both a physical act and an intent to revoke.
- If all wills are revoked, the estate passes under intestacy.
Key Terms and Concepts
- revocation
- operation of law
- contemplation of marriage
- codicil
- animus revocandi
- presumption of revocation