LECTURE 11- REVOCATION OF A WILL

• A Will does not come to life or has no effect

until the testator has died.
• Before the testator dies, a will merely
operates as a mere declaration of his/her
intention, and with any intention it can be
changed from time to time.
• A Will “wakes up or comes alive” only when
the testator has died.
Cont’d…

• In spite of any declaration in a Will or any

other document, a Will can be revoked any
time while the testator is alive.
• A contract not to revoke a will is binding but it
does not prevent its revocation although it
gives a right of action for damages against a
testator’s estate if it is revoked.
• Therefore by its very nature a will is revocable.
• Generally revocation can be effected any one
of the following ways: (i)by a later will or
codicil duly executed; or (ii) by some writing
declaring an intention to revoke the will and
duly executed as a will or (iii) by burning,
tearing or otherwise destroying the will by the
testator or someone in his presence and by his
direction, with the intention of revoking the
same (iv) by subsequent marriage.
No delegation of power
• The testator cannot delegate his power of
revocation so as to authorise revocation of his
will after death.
Section 13 (6) Wills Act
Stockwell v Ritherdon (1848) 1 Rob Eccl. 661
Intention to revoke
• Intention of testator is sole guide as to whether the
words amount to a revocation of a will.
• Revocation is not proved by mere accidental words or by
inference or by form of the testamentary document or by
implication where the circumstances do not accord with
such an intention.
• Any act done by the testator or by his direction which if
there was an intention to revoke, would amount to
revocation, then if there is no further evidence, an
intention to revoke is assumed
• However, if there is further evidence, it may
rebut that presumption and the inference of
revocation is not to be made
Cheese v Lovejoy (1877) 2 PD 251
• an act which is not shown to have the
intention to revoke is wholly ineffectual even
if the act results in the total destruction of the
will.
• Where testator destroys his will inadvertently
or under the belief that it is useless or invalid,
or has already been revoked, or on any
assumption of fact which proves false, or
where he is drunk at the time of the alleged
revocation or insane at the time though he
afterwards recovers.
• The fact that the testator destroyed the will in
error can be inferred from the circumstances.
Proof of intention
• Intention must clearly be proved.
• Must be present not future intention to
revoke
• Present intention + statement of intention to
make a new will which is not in fact made is
effective revocation.
Tommer v Sobinska (1907) P 106
• Intention can also be inferred from the nature of the
act done.
Burden of proof
• Burden of proof is on the party setting up the
revocation.
• In the absence of proof revocation is not assumed.
• Where a testator has become insane since the
execution of the will and the will is found mutilated or
not found at all, the burden lies on the party setting up
revocation to prove that it was intentionally mutilated
or destroyed while the testator was of sound mind
Allan v Morrison (1900) AC 604
• Where a will is executed in duplicate and the
duplicate cannot be found, there is a
presumption that it was revoked.
Jones v Harding (1887) 58 LT 60
• In all these cases execution of a valid will must
first be shown.
(i)Revocation by a later Will or Codicil
(a) Express revocation by will or codicil
• Under Section 13 (1) of the Wills Act, the whole or
part of a will may be revoked by another duly executed
will or codicil also known as express revocation.
• An earlier will can be revoked by an express clause of
revocation in a subsequent will or codicil.
“I revoke all wills codicils and other
testamentary dispositions heretofore
made by me”.
• No particular form of wording is required
• The advantage of inserting such a revocation
clause is that it makes it unnecessary to consider
whether, or to what extent, an earlier will or
codicil is revoked by implication.
• “Last will” insertion of these words “last and only
will does not necessarily revoke all previous
testamentary instruments.
• Only when it is clear from the tenor of the last
will that the testator did not intend the earlier
will to remain in operation that it is revoked.
• Such a revocation clause operates to revoke all
previous testamentary instruments as if they
had never existed at all.
• In a codicil, a revocation clause may revoke a
single clause, word , single clause in a previous
will or codicil.
• No particular form of words is required.
• A revocation clause shall not be valid if
i. The clause is contained in a conditional will which is
inoperative owing to the specified condition not
being satisfied.
In the Goods of Hugo (1877) 2 PD 73
ii. The clause is rejected for want of knowledge and
approval by the testator. The clause is not admitted
to probate if the testator did not know and approve
of it, but the clause will be admitted even if it was
included as a result of a mistake as to its legal effect
 iii) the clause itself is subject to a condition
which is not satisfied.
• b) Implied revocation by will of codicil
• A prior will or codicil is impliedly revoked by a
later will or codicil so far as the latter contains
provisions inconsistent with or merely repeating
the former.
• Section 13(2) of the Wills Act provides that
when a testator makes more than one Will,
the latest in time shall prevail to the extent
of any revocation variation or inconsistency.
• If provisions of later will of codicil are wholly
inconsistent or repetitive, the prior will or codicil
is completely revoked.
• If they are only partial inconsistencies or
repetitions, parts of the prior will or codicil not
affected by the inconsistency or repetition remain
unrevoked.
• The question to ask is not which of the two wills
or codicils did the testator desire to be admitted
to probate but which provisions did the testator
intend to take effect at his death”.
Wills of the same date or undated
• Where there are two valid but inconsistent
testamentary documents of the same date or
undated and it cannot be ascertained as to
which was executed first, neither can be
admitted to probate.
• If they both contain a revocation clause, they
operate to revoke a previous will.
e a testamentary document is lost or destroyed in such a
s not to effect a revocation, probate maybe granted to
ntents upon proof of such contents and due execution
ttestation of the instrument.
e the person setting up the an alleged will cannot
ce any copy or draft of any written evidence of its
nts, he must prove all these matters so as to remove
.
• The contents maybe proved from the instructions given
to a solicitor, by evidence of a witness, although he is
an interested party his evidence must be unimpeached.
• An alleged draft will be considered side by side with
oral evidence.
Lost subsequent Will
• Where a subsequent will is not forthcoming,
the person alleging that it revoked an earlier
will must strictly prove his allegations.
• There must be proof of difference of
disposition.
• If the person alleging revocation succeeds,
there is an intestacy, otherwise the earlier wil
is entitled to probate.
Partly Inconsistent Will
• Where there are several testamentary
instruments which are not wholly
inconsistent, they will be read together to
constitute the last will of the testator
whatever their date or form.
• The prior disposition is not to be disturbed
further than is absolutely necessary to give
effect to the later ones
• The presumption against implied revocation is
greater where the testator has used words
showing an intention only to alter the
dispositions in certain specific respects.
• The general principal is that a revocation by
subsequent will or codicil or codicil shall operate
only so far as is necessary to effectuate the
intention of the testator.
• An apparent revocation maybe rebutted by oral
evidence
 that the testator did not intend revocation or
by extrinsic evidence of the surrounding
circumstances
• It is incumbent upon those who contend that
a gift in one testamentary instrument is not to
take effect by reason of some subsequent
instrument, to show that the intention to
revoke is as clear and free from doubt as the
original intention to give.
Cont’d…

2) By a written declaration of intention to

revoke/Codicils
• A written declaration of intention to revoke a Will
or testamentary instrument does not need to be
in a Will or codicil.
• Can be in any document, instrument or any
writing.
• Condition is that it must be signed in accordance
with Section 6(1) or 6(4) of the Wills Act
Instruments of revocation
• a writing declaring an intention to revoke a
will must if it is to be effectual, executed in the
same manner as a will.
• Such writing may be a codicil, a memorandum
on the will, a letter, a settlement, declaration
of intention to revoke or a mere obliteration
of the testamentary document or a statement
in a will qualifying a bequest.
Cont’d…

3) By Destruction
• A Will is revoked by “burning, tearing or
otherwise destroying the Will by the testator
or by someone in his/her presence and by
his/her direction with the intention of
revoking it.
*Two important elements:
a) The act by destroying; and
Cont’d…

b) the intention to revoke or the animus

revocandi
i) The Act of Destruction
• Although it is not necessary for the Will to be
completely destroyed
• It is important that there should be actual and
not merely symbolic “burning, tearing or
other destruction” of the whole or some
essential part, such as cutting
Cont’d…

off, obliterating the signature of the testator

or the witness such that they cannot be seen
or read.
• Such that the Will can no longer meet the
provisions of Section 6(1).
• Drawing line not enough
Cheese V Lovejoy (1877) 2 P. D. 251.
Cont’d…

• Destruction of a part of a Will revokes that

part only, unless the destroyed part is so vital
that the rest of the Will cannot stand without
it. Goods of Woodward (1871) 2 P&D 206.
• An unauthorized destruction cannot
afterwards be ratified by the testator. Gill V Gill
(1909) P. 157
• The destruction of a Will by someone else is
not effective, unless carried out in the
presence of the testator and by his direction.
Cont’d…

• If the Will is destroyed without being revoked

as where the intention to revoke is missing, it
can be proved by means of a draft or file copy
or by even by oral evidence. Section 32(1), Wills Act.
ii) The Intention to Revoke (animus revocandi)
• The testator must have the intention to revoke
a Will at the time of destruction.
Cont’d…

• If a Will is intentionally destroyed or torn by a

testator who is drunk or who believes the Will
to be ineffective, the Will is not revoked.
Goods of Brassington (1902).
“All the destroying in the world without
intention will not revoke a Will nor all the
intention without destroying.” (Lord Justice
James in Cheese V Lovejoy).
Evidence of intention
• the intention to revoke a will wholly or in part
may be evidenced by proof of the expressed
intention of the testator in doing the act or
from circumstances from which the intention
may be inferred or by the state and condition
to which the instrument has been reduced by
the act itself.
• Revocation of Will does not revoke a codicil to
that Will, unless the Will and codicil are
contained on the same sheet of paper and the
testator cuts off his/her signature to the Will,
but evidence will be necessary to show the
testator’s actual intention.
Cont’d…

Destruction of duplicate
• When there is more than one copy of a Will
executed, one copy being kept by the testator
and another deposited elsewhere, the
destruction by the testator of the copy in
his/her possession with the intention of
revoking, revokes all copies.
Cont’d…

• When a Will is executed in more than one copy

and one copy kept by the testator or by his/her
direction is never found after the death of the
testator, the presumption is that the Will was
revoked.
• If testator had gone non compos mentis prior to
his/her death, the destruction will be presumed
to have been done without the animus revocandi
and therefore ineffective to revoke the former
will.
Cont’d…

• Is therefore dangerous/not wise to execute a Will

in more than one copy.
Incomplete Destruction
• The intention to revoke must continue until the
destruction of the document is complete
• If the testator leaves unfinished the work of
destruction which he had commenced, either in
consequence of the interference of a third party
or by his own voluntary change of mind, the will
is unrevoked because the intention has been revoked
before the act was completed.
Elms v Elms (1858) 1 Sw & Tr 155
Destruction by a third party
• Destruction by a third person in the presence and by
the direction of the testator is effectual.
• However destruction by the testator’s direction but
not in his presence is ineffectual nor can the testator
later on ratify a previous unauthorized act of
destruction by a third party.
Extent of the destruction
• There must be injury to the document with the
intention to revoke so as to destroy the entirety
of the will.
• Cutting of the testators signature, or scratching it
out or cutting off by the testator of the signatures
of the attesting witnesses if done with the
intention of to revoke will suffice as revocation
• Erasure by witnesses of their signature does not
revoke the will.
Partial destruction
• Where a portion of the will not necessary to
its validity as a testamentary instrument is
destroyed, the question is whether the
portion so destroyed is so important as to
raise a presumption that the rest cannot have
been intended to stand without it or whether
it is unimportant and independent of the rest
of the will.
• Where testator destroys some sheets of a will
and substitutes others but does not re-
execute the whole will, there is revocation.
Destruction of will but not codicil
• Destruction of a will does not revoke a codicil
Eg. can revoke will with the intention of revoking
it but will not revoke bequest in codicil
• Cancellation
• A will or codicil is not ‘killed’ by being struck
through with a pen even though done with the
intention to revoke nor by the word cancelled
being written across it.
• Reason?
Evidence of revocation
• Declarations by testator that he had destroyed his
will not admissible to prove the act of destruction
but are admissible to prove his intention to
revoke it from which the fact of destruction
• may be inferred.
• such declarations are inadmissible because they
may be misunderstood, misremembered or not
repeated in the exact words of the deceased.
Presumption of intention to revoke-destruction or
mutilation of will
• where a will is destroyed or found mutilated in a
place which the testator would naturally put it,
the presumption is that the testator destroyed it
• and that it was destroyed with the intention of
revoking it.
• Presumption may be rebutted.
Presumption of intention to revoke-will not
forthcoming
• if a will was last traced to the possession of the
testator and is not forthcoming at his death,
there is a prima facie presumption in the absence
of circumstances stating the contrary conclusion
• that the testator destroyed it with intention to
revoke it.
• does not involve presumed intention to revoke
duly executed codicils to such will which are
forthcoming at the testator’s death even though
they contain references to the will which is
known to have been destroyed by the testator.
• Presumption may be rebutted by evidence by the
contents of the will itself, or that by showing that
the testator had no opportunity of destroying
the will or that it had been lost or destroyed
without privity or consent.
Burden of proof
• where there is proof that a will was duly
executed, the onus of proof is first upon the party
setting up revocation to prove such revocation
• Where the presumption arises from the will being
mutilated or not forthcoming at the death of the
testator, the onus lies on those propounding the
will to rebut that presumption.
• Where the will is said by the testator to have
been destroyed, but is found to be in
existence after his death, effect must be given
to it.
• If the testator becomes insane after execution
of the will, those relying upon mutilation or
destruction as a revocation must prove
mutilation or destruction while the testator
was of sound mind.
 Partial Revocation
• The Wills Act 1989 recognizes that revocation may be
extended either to the whole or only to some part of
the will.
• Since revocation is wholly a matter of intention and
intention is the sole guide as to whether there is an
operative revocation, intention must also guide the
extent and measure of operation to be attributed to
an act of revocation and such act may operate to
revoke only a part or the whole of the will according to
the proved intention of the testator.
• Revocation of a part which leaves the remainder
unintelligible will result in total destruction.
 Revocation by a privileged testator

• Four methods of revocation considered above apply to

a privileged testator.
Section 13 (3) provides that:
“a will made in accordance with section 6(4) may
be revoked by another will made in
accordance with that subsection or by any means
of revocation provided under this section”.
(4) “ A will made in accordance with subsection (4)
of section six may revoke an earlier Will made by
the testator in accordance with section six”.
In other words, an informal will may revoke a
formal will.
• Difference is from the ability to make an
informal will.
1. Destruction
• Same rules as to formal will apply unless the
will was made orally making destruction
impossible.
 2. By will or codicil
• A privileged testator may revoke any previous
wills or codicils whether or not made when he
was privileged by an informal will or codicil.
3. writing declaring an intention to revoke
• A privileged testator may revoke a previous
will by informal writing declaring an intention
to revoke.
In the Estate of Gossage (1921) P. 194
• Informal writing does not revoke a formal will
when not privileged.
• Writing must be executed in the manner
required for execution of the will which it is
intended to revoke.
Revocation by subsequent marriage
• Section 13 (1) of the Wills Act provides three
methods of revoking a will as discussed above.
• There is a fourth method
• Section 18 of the wills Act 1837 which still
applies to Zambia for Wills made or marriages
that took place prior to 1989 .
• Section 18 of the Wills Act 1837 provides
that, subject to certain exceptions, ‘a will shall
be revoked by the testator’s marriage.
• However a void marriage does not revoke
such a will.
• This is the second method of revoking a will
without the animus revocandi as it is
automatic by operation of section 18.
• There are exceptions but shall only deal with
one.
• A will expressed to be made in contemplation
of marriage does not revoke the will.
• The person intended to be married must be
identifiable from the will.
 Dependent Relative Revocation
The Doctrine of Dependent Relative Revocation
• Revocation of the whole or part of a will or
codicil by destruction or by another will or
codicil or by a duly executed writing requires
an intention to revoke
• Intention may be absolute or conditional
• Revocation of a will is absolute unless it is
shown to be conditional.
• The burden of proof lies on the person seeking
to show that a revocation is conditional.
• Revocation by destruction, obliteration or by
subsequent will or codicil may be conditional.
• If the condition in question is unfulfilled, the
revocation fails and the will remains operative as
it was made.
• If testator destroys his/her Will with the intention
of making, establishing or reviving some other
Will or testamentary paper, the revocation is not
effective if that other Will or testamentary paper
is never made, established or revived.
• Sometimes a testator would make a disposition
different from one contained in an earlier Will
under a false impression of fact, or law which
induces him/her to change his earlier intention.
• If the fact or the law happens to be false the
Will is not revoked.
• When a revocation is done on condition that
something else happens or takes effect, there
is no revocation if the condition never
materializes.
• There is no revocation if revocation is
conditional on some fact or law being true
and it turns out to be untrue. Estate of Southerden
(1925); Davies (1851) I ALL ER 920.
• Section 13(5) provides that the destruction of
a Will by the testator: -
a) As a result of fraud or undue influence;
b) By accident;
c) Under a mistake of fact or law;
does not revoke a Will.
• Therefore, where a testator destroys a will as
result of fraud or undue influence, by accident
or under a mistake of fact or law intending to
make some other disposition of his property
which is not validly made; the destruction
shall not revoke the will.

THE END