Unit 2- Establishing Entitlement and Revocation, Additions and Alterations

1. Introduction

• Testate Estate: When a person dies leaving a valid will.

• Executors vs. Administrators:

  • Executors are appointed by the will.

  • Administrators are appointed if no executors are named (or no valid appointment).

  • Both are called personal representatives.

• Core Task: Establish what gifts the will makes, to whom, and what property passes under each gift, considering:

  • The exact wording of the will.

  • The property owned by the testator at death.

  • The identities of the beneficiaries named or described.

  • Whether named beneficiaries survived the testator.

2. The Importance of the Will’s Wording

• Key Principle: The will should accurately reflect the testator’s intentions.

• No Power to Rewrite: Neither a court nor any other party can change or rewrite a will to reflect what they think the testator would have wanted if the wording is clear.

3. When the Will’s Meaning Is Unclear

• Interpretation (or construction) is needed if the wording is ambiguous or imprecise.

• Courts discern the testator’s intent through the language used, in its overall context.

• Mistakes can arise because:

  • Practitioners make drafting errors.

  • Wills are sometimes homemade and not professionally reviewed.

4. Basic Presumptions in Will Interpretation

1. Non-technical words bear their ordinary meaning.

   • Example: The word “money” might mean just cash (coins/notes) in everyday usage, but it could be used more broadly to include other assets if the context indicates that was the testator’s intention.

2. Technical words are given their technical meaning.

   • Example: In Re Cook [1948] 1 All ER 231, a gift of “all my personal estate” was interpreted using the technical sense of “personalty” (as opposed to real property).

5. Rebutting the Presumptions

• The above presumptions (ordinary or technical meanings) may be rebutted if:

  • The will itself (and any admissible extrinsic evidence) shows the testator was using a specific word in a different sense.

• However, the court cannot invent new meanings out of thin air. Any departure from the usual meaning must be clear from the will.

Establishing the Testator’s Intention and the Use of Extrinsic Evidence

1. Shift Toward a More “Natural” Interpretation

• Courts have become less rigid in applying formal rules to interpret wills.

• Key function remains the same: to identify the testator’s intention as expressed by the exact words of the will, considering it as a whole.

2. General Rule: No Extrinsic Evidence

• Typically, only the will itself is examined to determine meaning.

• The basic rule is that the court is not prepared to consider other evidence in order to try to establish what the testator intended. If the meaning remains unclear the gift will fail for uncertainty

• If, despite careful reading, the wording is unclear or ambiguous, the gift in question can fail for uncertainty (see 2.7.1).

3. Statutory Exception: Section 21, Administration of Justice Act 1982

Under s 21, extrinsic evidence (including evidence of the testator’s actual intention) may be admitted in specific circumstances:

1. Meaninglessness: Any part of the will is meaningless s21(1)(a)s21(1)(a)s21(1)(a).

2. Facial Ambiguity: The language used in any part of the will is ambiguous on its face s21(1)(b)s21(1)(b)s21(1)(b).

3. Ambiguity in Light of Surrounding Circumstances: Evidence (other than evidence of the testator’s intention) shows that the language is ambiguous when considered with the surrounding circumstances s21(1)(c)s21(1)(c)s21(1)(c).

4. Section 21 therefore permits extrinsic evidence (including evidence of declarations made by the deceased) to be admitted to interpret the will insofar as any part of the will is meaningless or the language used is ambiguous or evidence (other than evidence of the testator’s intention) shows that the language is ambiguous in the light of the surrounding circumstances.

4. Thorn v Dickens 190619061906 WN 54

• Illustration of ambiguity “in light of surrounding circumstances.”

• Will left “all to mother.” On its face, no ambiguity: the estate should go to the testator’s mother.

• Surrounding circumstances:

  • The mother was already deceased when the will was made.

  • The testator knew his mother was deceased.

  • Extrinsic evidence showed the testator referred to his wife as “mother.”

• Outcome: This evidence was allowed only because it resolved an ambiguity (there was no one alive who fit the description “mother” literally).

5. Two-Step Process Under Section 21

1. Step One: The dispute must come within one of the three categories in s21(1) (meaningless, facially ambiguous, or ambiguous in the light of circumstances).

2. Step Two: If it does, extrinsic evidence (including evidence of the testator’s intentions) may be admitted.

   • However: This evidence is an aid to interpretation and cannot be used to rewrite the will.

Key Takeaways

• Courts prioritize the testator’s intention, but will not alter or rewrite a will.

• Extrinsic evidence is strictly limited by s21 AJA 1982, ensuring the will’s language remains paramount.

Notes on Rectification of a Will (Section 20, Administration of Justice Act 1982)

1. General Principle

• Normally, courts cannot rewrite a will to reflect what others believe the testator might have intended.

• Rectification is a limited exception where the will fails to carry out the testator’s actual intentions because of:

  1. A clerical error, or

  2. A failure to understand the testator’s instructions.

2. Requirements for Rectification

1. Clear Testator Intent

   • The testator must have formed specific intentions. Courts cannot rectify a will to include something the testator never actually considered.

2. Causes Permitting Rectification

   • Clerical Error: An error of a mechanical or textual nature (e.g., writing or omitting words by mistake).

     • Example: Joshi v Mahida [2013] WTLR 859

       • The solicitor wrote “one half of my share” instead of “my one half share.”

       • Held: This was a clerical error; the will was rectified accordingly.

   • Failure to Understand Instructions: The person drafting the will misunderstood or misapplied the testator’s explicit instructions.

     • Example: Sprackling v Sprackling [2008] EWHC 2696 (Ch)

       • Testator intended to leave only a farmhouse and a small parcel of land to his second wife.

       • The solicitor misunderstood and drafted a gift of the entire farm.

       • The testator’s clear, original written instructions were used to rectify the will.

3. Narrow Scope of Section 20

• Not available for a mere misunderstanding of the law or general drafting errors that do not fit the above two grounds.

• If words appear in a will by mistake and the testator did not know or approve them, it may be a separate matter of knowledge and approval, leading to those words being omitted from probate (see 1.6.3).

Key Takeaway: Rectification under s.20 AJA 1982 is a carefully circumscribed remedy allowing courts to correct specific errors so that the final will aligns with the testator’s known intentions.

Notes on Property Passing Under the Will

1. Property Passing Independently of the Will

• Certain assets do not form part of the estate passing under the will:

  • Property owned as beneficial joint tenants (passes by survivorship).

  • Assets that the testator did not own beneficially at death (e.g., life assurance policies written in trust).

2. Will “Speaks” From Date of Death

• The general rule (under s 24 Wills Act 1837) is that a will is interpreted as if executed immediately before the testator’s death.

  • Effect: Any reference to assets in the will typically includes all of the property the testator owns at death, even if that property was not owned at the time the will was drafted.

• Example: A gift of “all my estate” or “the residue of my estate” includes all assets the testator dies owning.

3. Contrary Intention in the Will

• If the wording of the will suggests a contrary intention, then the “speaks at death” rule does not apply.

• Common Indicators:

  • Present Tense: Phrases like “the house which I now own” may imply the gift is limited to what the testator owned at the time of making the will (i.e., no substitution if that house is sold or replaced).

  • Possessive ‘my’:

    • If “my car” is used in a context suggesting a particular car owned at will-execution, it could mean that specific car only.

    • If the item is a category of assets that can change (e.g., “my collection of cars”), it usually refers to whatever is in that collection at the date of death.

Key Takeaway

• Default: The will disposes of assets owned at death.

• Exception: Look for phrases showing the testator only meant to dispose of assets they owned at the time the will was written (or some narrower time).

Notes on Identifying the Beneficiaries Under a Will

1. General Approach

• When beneficiaries are named (e.g., “to Jane Smith”), identification usually involves confirming their survival beyond the testator’s death and the effect (if any) of a beneficiary predeceasing the testator.

• When beneficiaries are identified by description (e.g., “Kate’s eldest daughter”), additional rules of interpretation apply.

2. Reference to Beneficiaries: Date of Execution Rule

• Section 24 Wills Act 1837 applies to property (which “speaks from the date of death”).

• By contrast, references to people generally speak from the date the will was executed.

  • Example: A gift to “Kate’s eldest daughter” is taken to mean the person who was Kate’s eldest daughter at the time the will was made, not whoever is eldest at the date of death (unless the will indicates otherwise).

3. Family Relationship Descriptions

1. Class Gifts

   • A gift to “my children” or “my nephews” refers, by default, to blood relationships:

     • “My children” typically means the testator’s biological or legally adopted children, not step-children (unless the will provides otherwise).

2. Reading v Reading 201520152015 EWHC 946 (Ch)

   • The court interpreted “issue” to include step-children where the context showed that was the testator’s intention (e.g., other clauses indicating a desire to include step-children).

3. Special Rules for ‘Children’

   • “Issue” usually includes all direct descendants (children, grandchildren, etc.).

   • Adopted children:

     • Treated as children of the adoptive parents for wills made after the adoption (unless the will indicates otherwise).

     • Not included in a birth parent’s will unless the adoption occurred after a vested interest arose.

   • Marital Status: Under modern law, it is irrelevant whether a child’s parents are married; a reference to “my children” includes all biological or legally recognized children.

   • Assisted Reproduction: Children of whom the testator is legally a parent under the Human Fertilisation and Embryology Act 2008 are included.

4. Gender Recognition Act 2004

• A person who obtains a full gender recognition certificate is legally recognized in their acquired gender.

• Section 15: For wills executed before 4 April 2005, the change of gender does not affect dispositions.

  • For wills made on or after 4 April 2005, a beneficiary’s change of gender can affect the distribution (e.g., a gift “to my nieces” might now include a person who has changed gender, if it fits the will’s wording).

• Section 18: If the change in gender alters entitlements under such a will and thereby defeats someone’s expectations, the High Court can make an order to remedy that.

• Section 17 protects trustees/personal representatives from liability if they distribute property without knowledge of the gender recognition certificate or its revocation.

5. Spouses and Civil Partners

• A reference to “John’s wife” does not include John’s civil partner unless the will expressly says so. The terms “husband,” “wife,” and “civil partner” each have distinct legal meanings.

Key Takeaway

• Named beneficiaries: straightforward identification.

• Described beneficiaries: check whether they meet the description as of the will’s execution (unless the will says otherwise).

• Family terms: default to blood relatives and/or legally recognized relationships, but the will’s language can override.

• Gender recognition: for wills after 4 April 2005, a beneficiary’s acquired gender can change inheritance consequences.

1. Overview: Failure of Gifts

1. A gift in a will may fail for a variety of reasons.

2. If a gift fails, it typically:

   • Falls into the residue (if it was a gift of a specific item or a pecuniary legacy), where the residuary beneficiary takes it, or

   • Creates a partial intestacy (if it was a gift of residue itself that fails), meaning the intestacy rules (see Chapter 4) determine who inherits that portion of the estate.

2. Uncertainty (Section 2.7.1)

1. Definition

   • A gift will fail for uncertainty if neither the subject matter (the property being gifted) nor the intended recipient can be identified from the wording of the will.

2. Court’s Preliminary Steps

   • The court will attempt to:

     • Interpret the will as a whole.

     • Consider rectification (s 20 Administration of Justice Act 1982) if there is evidence of clerical error or misunderstanding of instructions (see 2.4).

   • If, after these efforts, the meaning cannot be discerned, the gift fails.

3. Charitable Exception

   • If the intended recipient is “a charity” but the will does not specify precisely which charity, the gift may still be effective if it is clear that the gift was intended exclusively for charitable purposes.

   • In such cases, the court can choose a specific charity to benefit.

Example: A will says “I leave the sum of £5,000 to the local animals shelter.” If there is no clear “local animals shelter” named or identifiable, but the testator’s charitable intent is clear, the court can direct which local charity should receive the gift.

3. Beneficiary (or Their Spouse/Civil Partner) Witnesses the Will (Section 2.7.2)

1. Section 15 Wills Act 1837

   • A gift to a beneficiary fails if that beneficiary or their spouse/civil partner acts as a witness to the will’s execution.

   • However, the beneficiary (or spouse/civil partner) remains a competent witness; the validity of the will itself is not affected.

2. Policy Rationale

   • Designed to prevent undue influence or bias: a witness verifying the will’s execution should be impartial, with no vested interest in proving it.

3. What Counts as a “Spouse?”

   • Specifically, the person to whom the beneficiary was married (or in a civil partnership with) at the time the will was executed.

   • Note that other close relationships (e.g., a beneficiary’s child or cohabitant) do not trigger s 15—so a gift to that witness does not fail under this rule.

4. Exceptions

   • If the will has enough valid witnesses without counting the beneficiary’s signature, the gift will not fail.

     • Example: Three people witness the will. One is a beneficiary. The will is still valid with the other two witnesses, so the beneficiary’s gift remains valid.

   • A codicil (see 3.4) that republishes or confirms the original will but is not witnessed by the beneficiary/spouse/civil partner can also cure this defect for the gift.

4. Divorce or Dissolution (Section 2.7.3)

1. Effect of Marriage/Civil Partnership Dissolution

   • Under ss 18A and 18C Wills Act 1837, if a testator’s marriage or civil partnership is later dissolved, annulled, or declared void, then any gifts to the former spouse/civil partner take effect as if that spouse/civil partner had died on the date of the dissolution.

2. Example

   • A will leaves everything to “my husband” with a substitutional gift to “my children if my husband dies before me.” If the couple divorce, the gift to the husband fails, and it passes to the children as though the husband had died before the testator.

3. Scope

   • This rule only applies to a formal ending of the marriage or civil partnership (i.e., court order). Simply living apart does not invalidate the gift.'

   • No Automatic Revocation of the Entire Will

     • Important to note that, unlike marriage, which can (in many cases) automatically revoke an earlier will, divorce does not revoke the entire will.

     • Only the gifts and appointments to the now ex-spouse or civil partner are affected. The rest of the will generally remains valid and operative.

5. Ademption (Section 2.7.4)

1. Definition

   • Ademption occurs when the testator no longer owns a specific gift at death, causing that specific gift to fail.

   • Typically arises if the property is sold, destroyed, or given away before death.

2. Effect

   • The beneficiary receives nothing in respect of that specific gift.

   • The asset (if it no longer exists) cannot pass to the beneficiary.

3. Changes in the Asset

   • If the asset is substantially the same but has merely changed in form (e.g., a company takeover results in shares being converted from one company to another), the gift usually remains valid.

   • If there is a change in substance, it will be treated as an ademption.

4. Replacement Assets

   • If the will references a specific item (e.g., “my car” or “my piano”) and that item is replaced before death, courts often presume that the testator intended only the original item. The new item will not pass unless there is evidence suggesting otherwise or the gift is phrased in a way that clearly includes replacements (“all my jewellery,” “my collection of cars,” etc.).

   • By contrast, a gift of “my jewellery” (a generic class of property) typically includes whatever jewellery the testator has at death, including replacements.

5. Role of Codicils

   • Executing a codicil effectively republishes the will at the codicil’s date. Thus, if a testator no longer owns the original item at the time of the will, but does own a replacement and then executes a codicil, the gift might apply to the replacement (because the will is “treated” as made on the codicil date).

6. Lapse (Section 2.7.5)

6.1 Basic Rule: Beneficiary Dies Before Testator

1. If a beneficiary predeceases the testator:

   • That gift lapses (fails).

   • The property passes:

     • Into residue if the lapsed gift is non-residuary, or

     • By intestacy if the lapsed gift is the residue (unless there is a substitutional gift).

2. Survival

   • Generally, a gift vests at the moment the testator dies, provided the beneficiary is alive.

   • If the beneficiary dies minutes or hours later, they (or their estate) still take the gift.

3. Contrary Intention

   • The testator can specify that the gift is to pass to the “holder of an office at my death” or to “whoever is alive at my death,” etc. That would override the usual rule.

4. Republication by Codicil

   • If a beneficiary described in the will dies between the execution of the will and a later codicil, the will is republished as of the codicil date.

   • This may mean that a different individual now fits the description (e.g., “eldest son of X”) if the original named/identified person has died before the codicil was executed.

6.2 Section 184 Law of Property Act 1925: Presumption of Survivorship

1. Simultaneous or Uncertain Deaths

   • The law does not accept that two people die at the same instant. If it is impossible to prove the order of death, s 184 states that the older person is deemed to have died first.

2. Significance

   • If a beneficiary is older than the testator (or vice versa) and the order of death is uncertain, the elder is deemed to predecease the younger, which can trigger lapse or pass the estate to the younger’s estate.

3. Case Example: Scarle v Scarle 201920192019 EWHC 2224 (Ch)

   • Husband and wife died of hypothermia. Forensic evidence didn’t conclusively prove who died first.

   • Wife was younger. By s 184, the husband (older) was deemed to have died first, so the wife inherited the entire joint estate before her own death, meaning her heirs benefited.

6.3 Survivorship Clauses

1. Definition

   • A will may include a survivorship requirement (e.g., “beneficiary must survive me by 28 days”).

   • If the beneficiary fails that requirement, their gift lapses (as if they predeceased the testator).

6.4 Gifts to Multiple Beneficiaries

1. Joint Tenancy

   • A gift to two or more as joint tenants does not lapse unless all the joint tenants die before the testator. If at least one joint tenant survives the testator, they take the entire gift.

2. Tenants in Common / Words of Severance

   • If the gift states “to A and B in equal shares,” it severs the interests. If A dies first, A’s share lapses and typically:

     • Falls into residue or

     • Goes via intestacy if it’s part of the residue, unless there is a substitutional gift.

3. Class Gifts

   • A class gift (e.g., “to my nieces and nephews equally”) does not lapse unless all members of the class die before the testator.

   • If at least one class member is alive at the testator’s death, that surviving member(s) take(s) the gift (subject to other rules like s 33 or a contrary intention).

6.5 Section 33 Wills Act 1837: Gifts to Children/Remoter Issue

1. Scope

   • Section 33 prevents lapse for gifts to the testator’s children or remoter descendants (grandchildren, great-grandchildren, etc.).

   • If the child/descendant dies before the testator but leaves their own issue who survive the testator, that gift automatically “jumps” to those issue, unless the will shows a contrary intention.

2. Effect

   • This section implies a substitution clause for a testator’s direct line descendants.

   • Example: A gift to “my daughter Caroline.” Caroline dies before the testator, leaving a son, James. Under s 33, James inherits what Caroline would have received, in equal shares with any other siblings, unless the will says otherwise.

3. Contrary Intention

   • If the testator’s will explicitly excludes substitution (or sets out a different plan), s 33 does not apply.

7. Disclaimer (Section 2.7.6)

1. Right to Refuse

   • A beneficiary cannot be forced to accept a gift. They may disclaim (reject) it.

2. Effect of Disclaimer

   • The gift falls into residue or passes under intestacy if it was a gift of residue.

   • The disclaiming beneficiary is treated as if they predeceased the testator.

     • This can activate s 33 where applicable (child or remoter issue disclaim, then their own descendants might inherit instead).

3. Acceptance Precludes Disclaimer

   • If the beneficiary has already received some benefit (e.g., income from the gifted property), it is generally too late to disclaim.

8. Forfeiture (Section 2.7.7)

1. Public Policy

   • No one can benefit from their own unlawful killing of another. If a person unlawfully kills the testator, they forfeit any entitlement under the testator’s will (or by survivorship or intestacy).

2. Scope of the Rule

   • Applies to murder, manslaughter, aiding and abetting suicide, causing death by careless driving, etc.

   • Exception: Does not apply if the killer was insane at the time (i.e., not guilty by reason of insanity).

3. Effect

   • Subject to a contrary intention in the will, the killer is treated as having predeceased the testator.

   • This means that s 33 can apply (if the killer was a child/grandchild, their own issue might inherit in their place).

4. Forfeiture Act 1982

   • For unlawful killing short of murder (e.g., manslaughter, assisted suicide), the High Court can modify or grant relief from the forfeiture rule if justice demands.

   • The killer must apply within three months of conviction, and the deadline cannot be extended.

5. Case Example: Ninian v Findlay 201920192019 EWHC 297 (Ch)

   • A wife assisted her terminally ill husband to travel to Dignitas in Zurich for assisted suicide.

   • She was convicted of assisting suicide. However, the court used its discretion under the Forfeiture Act 1982 to grant full relief, so she inherited as per the will.

9. Practical Significance

1. Role of Personal Representatives

   • Executors/administrators must identify which gifts are valid and which fail.

   • If a gift fails, they must ensure the property is distributed correctly to residuary beneficiaries, or under intestacy if the failed gift is part of the residue itself.

2. Key Points to Check

   • Ownership of specifically gifted property at the date of death (Ademption).

   • Survival of beneficiaries (Lapse, Survivorship Clauses, s. 184).

   • Application of s 33 for the testator’s direct line issue.

   • Possible disclaimers or forfeiture.

   • Validity of witnessing and effect on beneficiary entitlements (s 15 WA 1837).

   • Dissolution of marriage/civil partnership (ss 18A, 18C WA 1837).

Key Takeaways

• Many ways a gift can fail even though the will is valid.

• Check for uncertainty, incorrect witnessing, divorce, ademption (no longer owning the gift), lapse (beneficiary predeceases), disclaimer, and forfeiture.

• Statutory provisions (s 33, s 15, s 18A/C, s 184, Forfeiture Act 1982) often determine where the failed gift goes.

• Careful drafting and awareness of these rules help prevent unexpected failures or partial intestacy.

Revocation, Additions and Alterations

1. Revocation in General

1. Definition:

   • Revocation means formally canceling or withdrawing a will. It nullifies the will—either fully or partially.

2. Fundamental Principle:

   • A will is always revocable. A testator who once had capacity to make a will can typically revoke it at any time, provided they still have testamentary capacity.

3. Key Situations Where Revocation Occurs:

   1. By a later will or codicil

   2. By destruction

   3. By marriage or forming a civil partnership

This set of notes focuses on Revocation by a later will or codicil.

2. Revocation by a Later Will or Codicil

2.1 Statutory Basis

• Section 20, Wills Act 1837: A will can be revoked (in whole or part) by any later:

  • Will or codicil (which itself must be duly executed), or

  • Written declaration of revocation, executed with the same formalities as a will.

2.2 Express Revocation

• Common Practice: A professionally drafted will typically starts with an explicit statement such as:

  “I hereby revoke all former wills and testamentary dispositions previously made by me.”

• Effect: This clause cancels all earlier wills and codicils in their entirety.

2.3 Implied Revocation

• If a later will (or codicil) does not contain an express revocation clause, it may still revoke parts (or all) of an earlier will if the two instruments are inconsistent.

  • Total Inconsistency: The entire earlier will is effectively overridden.

  • Partial Inconsistency:

    • Only the inconsistent parts of the earlier will are overridden.

    • The court (or personal representatives) must read both wills together to piece together the overall testamentary intentions.

Example

2.4 Dating a Will

• It is not a formal requirement under s 9 Wills Act 1837 to have a date on the will, but it is strongly advisable.

  • Reason: Knowing the chronological order of wills is crucial to understanding which revokes which.

2.5 Conditional Revocation (Dependent Relative Revocation)

• Concept: In rare circumstances, the court may interpret an express revocation clause in the later will as being conditional upon a specific event—often the effectiveness or validity of that new will.

  • If that condition is not satisfied (for example, the new will turns out to be invalid), the court might rule that the earlier will was never effectively revoked and hence remains valid.

• This doctrine is sometimes referred to as:

  • Dependent Relative Revocation (DRR), or

  • Conditional Revocation.

Example

3. Summary of Key Points

1. Express Clause is Best Practice: Typically, wills include a formal revocation statement so there is no doubt about the status of earlier wills.

2. Implied Revocation: Without an express clause, inconsistency with an older will can partially or completely revoke that older will.

3. Date the Will: Essential to know the order in which multiple wills/codicils were made.

4. Conditional/Dependent Relative Revocation:

   • Rare but can save the earlier will if the later will fails to take effect.

Takeaway: When drafting or interpreting a later will (or codicil), always check (1) whether there is an express revocation clause, (2) whether there are inconsistent provisions that imply partial revocation, and (3) the dates of each testamentary document.

by destruction

1. Statutory Basis

• Section 20, Wills Act 1837 states that a will may be revoked by:

  “Burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”

This sets out the core elements:

1. Physical Act of Destruction

2. Intent to Revoke

3. Performed by the Testator (or someone else in the testator’s presence and by the testator’s direction)

2. Physical Destruction Requirement

1. Actual Physical Destruction

   • The statute lists “burning” and “tearing,” but covers any comparable physical act (e.g., shredding, cutting, etc.) that ensures the will (or part of it) is effectively destroyed.

2. Symbolic Destruction Insufficient

   • Simply writing “revoked” across the will, crossing out wording, or otherwise symbolically defacing it does not fulfill the requirement unless it actually destroys a vital part of the will (for instance, removing the signature or a substantial portion of the text).

   • Cheese v Lovejoy (1877) 2 PD 251 is a classic illustration: the testator wrote “All these are revoked” and discarded the will, but he had not physically destroyed it, so revocation was ineffective (see Section 5.1 below).

3. Partial vs. Complete Destruction

   • If all or a vital part (e.g., the signature) of the will is physically destroyed, the entire will is revoked.

   • If the destroyed portion is less substantial, only that part may be treated as revoked if the remaining will is still intelligible and can stand on its own.

3. Requirement of Intent to Revoke

1. Co-Existence of Physical Act + Intention

   • Intention (animus revocandi) must accompany the act of destruction.

   • Physical destruction without intention = no revocation.

   • Intention without physical destruction = no revocation.

2. Accidental Destruction

   • If a will is accidentally destroyed (e.g., lost in a house fire or mistakenly shredded), there is no revocation because no intent to revoke accompanied that act.

3. Proving the Testator’s Intention

   • If the will is partially destroyed or there is doubt about the testator’s state of mind, evidence must be used to determine whether the destruction was deliberate and with the purpose of revocation.

4. By the Testator or Someone Else

1. Testator’s Own Act

   • The default scenario is that the testator physically performs the destruction.

2. By Another Person

   • Valid only if it is done in the testator’s presence and by the testator’s direction.

   • If destruction happens out of the testator’s presence (e.g., in another room) or without explicit direction, the will is not revoked.

5. Case Law on Destruction and Intent

5.1 Cheese v Lovejoy (1877) 2 PD 251

• Facts:

  1. The testator drew lines through parts of his will, wrote “All these are revoked” on the back, and kicked it onto a pile of waste paper.

  2. The housekeeper rescued the will, which remained intact.

  3. The testator did not physically destroy it.

• Held:

  • There must be both a physical act of destruction and an intention to revoke.

  • “All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying.”

  • Outcome: The will was not revoked, as there was an intention but no sufficient physical destruction.

6. Doctrine of Dependent Relative Revocation (DRR)

1. General Principle

   • Sometimes referred to as “conditional revocation.”

   • The testator’s destruction of the will is treated as conditional on some event (e.g., the validity or effectiveness of a new will).

   • the testator’s intention to revoke their will by destruction was conditional upon some future event (eg upon the later execution of a new will). If that event did not in fact take place, the original will may be valid even though it was destroyed. The contents of the original will may be reconstructed from a copy or draft.

2. Effect

   • If the condition (e.g., “I only want to revoke my old will if the new will I’m making is valid and properly executed”) fails, the original will remains valid despite having been physically destroyed.

3. Practical Application

   • Courts look at what the testator intended if the new or replacement testamentary disposition fails for any reason.

   • If they conclude the testator would have preferred the old will (rather than dying intestate or having a different distribution), DRR can “save” the old will.

4. Example

   • Scenario: Ranvir makes a will leaving her entire estate to Tina. Later, she decides to benefit Charlene instead, so she destroys her old will in anticipation of making a new one. However, Ranvir dies before executing the new will.

   • Analysis:

     1. If Ranvir’s primary intent was simply to exclude Tina entirely, then the revocation of the old will might stand, and her estate passes intestate.

     2. If Ranvir’s intention was conditional—i.e., “I only want to revoke my old will if I successfully make a new one favoring Charlene”—and she would have preferred Tina as opposed to an intestacy, the court can apply DRR.

        • This means the old will is “revived,” and Tina inherits.

7. What Happens If a Will Is Destroyed but Not Effectively Revoked?

1. Reconstruction

   • The court will need evidence of the contents. This might be a:

     • Copy of the signed will

     • Draft or solicitor’s file notes

     • Oral testimony from those involved in its preparation

2. Admission to Probate

   • If the court is satisfied with the evidence, it may admit the reconstructed version to probate as a valid will.

8. Practical Implications

1. Safeguarding Original Will

   • Because an act of destruction can revoke a will, testators often store the will with a solicitor or a will storage facility to prevent accidental destruction.

2. Clearly Express Intention

   • If a testator truly wants to revoke a will by destruction, they should physically destroy all or the critical portions of the document while intending to revoke.

   • If destruction is only partial or uncertain, disputes can arise over whether the will was validly revoked.

3. Making a New Will

   • Usually, revocation by a later will with an express revocation clause is cleaner and avoids confusion over partial destruction or missing pages.

4. Be Aware of Conditional Revocation

   • If a testator wants to destroy the old will but only if a new one is valid, they should confirm the new will’s validity before destroying the old. Otherwise, a DRR argument might resurrect the old will.

9. Key Takeaways

1. Two Elements for Valid Destruction:

   • Physical destruction + Intent to revoke must coincide.

2. No Intent = No Revocation

   • Accidents or purely symbolic gestures do not revoke.

3. Doctrine of Dependent Relative Revocation

   • Can “save” an old will if destruction was meant to be conditional on something else (e.g., successfully making a new will).

4. Potential for Litigation

   • If a will is found partially destroyed or is missing, courts will examine facts carefully to see if a valid revocation occurred.

5. Practical Tip

   • Use a later will with an express revocation clause for clarity, rather than physically destroying a will unless you are certain you want it gone unconditionally.

revocation of a will by marriage or by formation of a civil partnership

1. The Automatic Revocation Rule

1. Statutory Basis

   • Sections 18, 18A–18C, Wills Act 1837: If a testator marries or forms a civil partnership after making a will, that will is automatically revoked.

2. Scope

   • Marriage and civil partnership are the only life events that trigger automatic revocation. Other major events—such as the birth of a child or death of a spouse—do not automatically revoke a will.

3. Significance

   • Many people may be unaware that marriage or forming a civil partnership automatically revokes their earlier will, which can lead to an intestacy or an outdated estate plan if they do not create a new will afterward.

4. Effect

   • The entire will is revoked. In most cases, unless a new will is executed after the marriage, the testator will die either:

     • Fully intestate, or

     • With a newly made valid will, depending on the testator’s actions post-marriage.

2. Exception: Will Made “In Contemplation of Marriage”

1. Statutory Exception

   • Sections 18(3), 18B(3), Wills Act 1837: The rule of automatic revocation does not apply if all the following are met:

     1. The will was made in contemplation of the forthcoming marriage or civil partnership with a particular person.

     2. The will states the testator’s intention that it shall not be revoked by that marriage or civil partnership.

2. Key Requirements

   • Specific Person: The testator must name or otherwise clearly identify who they are marrying (general statements like “I expect to marry someday” are insufficient).

   • Express Intention: The will’s wording must explicitly say it is not to be revoked by that future marriage.

3. No Actual Marriage Required (Unless Conditional)

   • If the will satisfies those requirements (i.e., “in contemplation of marriage to X” + “this will not be revoked by such marriage”), the will stands even if that marriage never happens, unless the will expressly states it is conditional upon the marriage taking place.

4. Contrast

   • If the testator later marries someone else (i.e., not the named person in the will), the will is automatically revoked, since the exception only applies to a marriage with that particular person.

Example

Judi and Helga are engaged. Judi executes a will leaving her entire estate to Helga, explicitly stating:

• Outcome: If Judi and Helga do marry, the will remains valid.

• If Judi and Helga never marry but the will does not say “conditional upon marriage,” Helga is still the beneficiary.

• If Judi instead marries a different person, the will is automatically revoked.

3. Conversion of a Civil Partnership into Marriage

1. No Revocation

   • Where a same-sex civil partnership is converted into a marriage, such a conversion does not revoke any existing will of either party.

   • Effect: Dispositions in the wills remain valid; there is no requirement to remake or reaffirm the will because of the conversion.

2. Policy Reason

   • The law treats the conversion as a continuation of the relationship, not a new marriage event that triggers revocation.

4. Comparison with the Effect of Divorce or Dissolution

1. Divorce / Dissolution of Civil Partnership

   • Under Sections 18A and 18C Wills Act 1837 (amended by subsequent legislation):

     • The will remains valid, but

       1. Any gift to the former spouse/civil partner is treated as if the spouse/civil partner died on the date of the divorce/dissolution.

       2. Any appointment (e.g., as executor or trustee) of the former spouse/civil partner is also treated as if that spouse/civil partner died on the same date.

2. Result

   • Gifts and appointments fail (lapse), and any substitution clauses (e.g., “if my spouse does not survive me, then to my children”) take effect as though the spouse predeceased the testator.

   • The rest of the will remains in force.

3. Living Apart Does Not Revoke or Alter

   • Simply separating or living apart without a formal court dissolution or annulment does not trigger these revocation provisions. The spouse or civil partner remains fully entitled under the will unless/until the marriage/partnership is formally ended.

6. Key Takeaways

1. Marriage/Civil Partnership = Automatic Revocation

   • Except if the will expressly says it was made in contemplation of that specific marriage/partnership, and without intent to revoke.

2. Conversion of Civil Partnership to Marriage

   • Does not revoke an existing will.

3. Divorce/Dissolution

   • Leaves the will itself valid but treats the former spouse as though they predeceased the testator, nullifying gifts and appointments in their favor.

4. Best Practice

   • Always review and/or remake your will upon marriage, civil partnership, divorce, or other major life events to ensure it aligns with your wishes and avoids unintended intestacy or lapsed gifts.

doctrine of mutual wills

2. What Are Mutual Wills?

1. Definition:

   • Mutual wills arise where two individuals (often spouses, civil partners, or partners) make similar or identical wills and agree that whichever of them survives will not revoke their will and will leave their estate (after the survivor’s own death) in a particular way.

2. Typical Scenario:

   • A husband and wife each make a will leaving their respective estates to each other, with a further provision that upon the survivor’s death, the estate should go, for example, to the wife’s child from a previous relationship.

   • Both parties promise each other that neither will revoke their will if they become the survivor.

3. Why Mutual Wills?

   • Commonly used when each party wants to ensure that the final inheritance goes to particular loved ones (e.g., children from a previous marriage).

   • If one spouse outlives the other and receives everything, that surviving spouse might otherwise rewrite their will and leave assets elsewhere, unless mutual wills prevent that by equitable means.

3. Distinction Between Mirror Wills and Mutual Wills

1. Mirror Wills

   • Couples frequently execute “mirror wills,” where each leaves everything to the other on the same terms (e.g., “I leave my estate to my spouse; if they do not survive me, then to our children”).

   • Mirror wills are not necessarily mutual wills; they’re just “matching” in content.

2. Mutual Wills

   • Requires more than identical terms; there must be a binding agreement that neither party will change or revoke the will after the other dies (or that a specific gift will remain).

   • The presence of a clear agreement is crucial.

4. The Legal Effect of Mutual Wills

1. The Survivor’s Ability to Revoke

   • As a matter of pure testamentary freedom, the survivor can still execute a new will (legally speaking).

   • However, this new will’s dispositions may be rendered unenforceable due to the doctrine of mutual wills, because equity “steps in.”

2. Constructive Trust

   • Once the first testator dies having not revoked their mutual will, equity deems that the surviving testator is bound by the mutual wills agreement.

   • The survivor holds the property they received under the mutual will on a constructive trust for the ultimate beneficiaries named in the mutual wills.

   • If the survivor does attempt to revoke, the new will does not avoid the trust obligations. The estate effectively must still go to the intended beneficiary under the mutual wills arrangement.

3. Consequence

   • The new will remains valid as a testamentary document but is overridden by the constructive trust. In other words, legal title might pass, but the beneficial interest is locked in favor of the mutual wills’ beneficiaries.

4. Unconscionability

   • Courts step in because it would be unconscionable for the survivor to accept the benefits of the mutual wills (i.e., inheriting from the first deceased) and then fail to abide by the agreed-upon distribution.

5. Requirements for Mutual Wills

1. Clear Agreement

   • The two testators must have expressly agreed that their wills would not be revoked (or at least that the survivor will leave their estate to certain beneficiaries).

   • Merely making mirror wills with similar terms does not automatically give rise to mutual wills.

2. Surviving Testator Receives the Estate

   • The doctrine only “locks in” when the first testator dies without having revoked their will. At that point, they have fulfilled their side of the agreement, so equity imposes obligations on the survivor.

3. During Joint Lives: Revocation Possible if Both Consent

   • If both testators are still alive, they can mutually agree to revoke or vary their wills despite the initial mutual wills agreement. They must do so together (i.e., a “joint decision”).

4. Unilateral Revocation During Joint Lives

   • If one testator unilaterally revokes their will or fails to adhere to the agreement while both are alive, that is a breach of contract, potentially giving the other testator a contractual damages claim.

6. The Survivor’s Use of the Inherited Estate

1. Absolute Ownership (But Not Absolute Freedom to Defeat the Trust)

   • The survivor generally becomes the absolute legal owner of the inherited assets upon the first testator’s death.

   • This means they can spend, invest, or even lose the money as part of their normal life (e.g., living expenses, financial decisions).

2. Spending or Disposal

   • The survivor may spend or deal with the property as needed. If, for instance, they make poor investments or lose money, there may be nothing left for the ultimate beneficiaries.

   • That’s not a breach of the mutual wills doctrine unless the survivor’s motive is specifically to deprive the intended beneficiaries (i.e., a deliberate attempt to defeat the arrangement).

3. Deliberate Dispositions to Defeat the Agreement

   • The survivor cannot intentionally transfer or give away assets solely to circumvent the mutual wills arrangement. Doing so would likely be reversed by the court under the constructive trust principles.

7. Breach and Remedies

1. Breach by the Survivor

   • If the survivor revokes or changes the will after the first testator has died, a constructive trust arises in equity. The disappointed beneficiaries can enforce that trust in court.

2. Breach by One Testator During Joint Lives

   • If one revokes while both are still alive, the other may have a contractual remedy (damages) rather than a trust remedy, because the constructive trust only crystallizes once the first testator dies.

3. Practical Enforcement

   • The disappointed beneficiaries or the estate can bring an action to enforce the constructive trust. This can override the terms of a new, conflicting will.

8. Illustrative Example

• Scenario:

  1. Husband and wife each make a “mutual will,” leaving everything to each other on condition that the survivor leaves it to the wife’s daughter, Alice.

  2. The wife dies first, without revoking her will. The husband inherits her entire estate.

  3. Later, the husband tries to revoke his mutual will and make a new will leaving the estate to his own nephew.

  4. Result:

     • The husband’s new will is legally valid in terms of execution. However, equity imposes a constructive trust over his assets in favor of Alice, because the wife fulfilled her part of the bargain by not revoking.

     • The husband’s nephew cannot take the property beneficially if Alice asserts her equitable rights.

9. Key Takeaways

1. Fundamental Revocability vs. Mutual Wills

   • Even though a will is theoretically always revocable, mutual wills create equitable obligations. Breach of these obligations triggers trust and/or contract remedies.

2. Agreement Must Be Clear

   • Mutual wills do not arise automatically from merely making identical or mirror wills. A formal agreement is needed, typically evidenced by the wills and any supporting documentation or express statements.

3. Constructive Trust Mechanism

   • After the first death, the survivor cannot freely distribute the property contrary to the mutual wills’ terms without incurring equitable liability.

4. During Both Lives

   • Either party can revoke unilaterally, but that is a contractual breach. Both can revoke by mutual agreement, canceling the arrangement.

5. Practical Caveats

   • Mutual wills are rare in practice because they can lead to complex trust and enforcement issues.

   • They are often used only where spouses (or partners) strongly want to ensure that certain beneficiaries receive their assets, particularly in blended-family situations.

codicils

What Is a Codicil?

A codicil is a separate document executed with the same formalities as a will (signed by the testator in the presence of two witnesses). It adds to or modifies an existing will— rather than replacing it.

Main Effects of a Codicil

1. Read Together with the Original Will

   • The will and codicil are interpreted as one combined document expressing the testator’s final wishes.

2. Republication of the Will

   • A properly executed codicil “republishes” the original will—causing it to be treated as if it were made at the same date as the codicil.

   • Example: If a beneficiary had witnessed the original will, that gift might be invalid; however, a new codicil (not witnessed by the beneficiary) can revive that gift by republishing the will.

3. Reviving a Previously Revoked Will

   • Under Section 22, Wills Act 1837, a codicil can revive a will that was previously revoked, but only if the intention to revive is clear.

   • A mere reference to the old will is not enough; it must be evident that the testator wanted the revoked will back in force.

Practical Considerations

1. When to Use a Codicil

   • Suitable for minor changes (e.g., updating a specific gift amount or adding a small legacy).

2. When a New Will Is Better

   • If the changes are substantial or numerous, a fresh will is typically simpler and less prone to confusion.

3. Execution Formalities

   • A codicil must be signed by the testator and witnessed by two individuals (just like the original will).

Key Points on Alterations to a Will

1. Alterations Before Execution

   • If changes appear on the face of the will before the will is signed and witnessed, they are valid as long as it is clear the testator intended them to form part of the will.

   • However, the law presumes that any alteration was made after execution unless proven otherwise—so it may be necessary to show evidence (e.g., from the witnesses) that the alteration predated execution.

2. Alterations After Execution

   • Generally, an alteration to a will made after it was signed must be executed with the same formalities as a will (i.e., signed by the testator and two witnesses) or be initialled by the testator and those witnesses.

   • If properly executed, the will is read as if it originally contained that alteration.

   • Unexecuted alterations have no effect, and the original wording remains valid unless the wording was obliterated (see point 4).

3. Original Wording Stands Where It Is ‘Apparent’

   • If an alteration is invalid (e.g., not executed), and the original wording can still be read with ordinary means (magnifying glass or holding the page to the light is okay; chemicals or X-rays are not), the original wording continues in effect.

4. Obliteration and Revocation by Destruction

   • If the testator crosses out or blacks out the words so completely that the original is unreadable, that portion is treated as revoked—as if “destroyed”—provided the testator had intended to revoke it.

   • The rest of the will stays valid, but the obliterated words no longer apply.

5. Conditional Revocation (Dependent Relative Revocation)

   • If the testator replaces the obliterated words with new wording but never validly executes that new wording, a court might decide the testator only intended to revoke the old wording if the new words were effective.

   • If the new wording fails (e.g., it wasn’t properly witnessed), the old wording is “revived,” assuming it can be discovered (using methods beyond just reading the page if necessary).

Tamal’s Example

Original Will: “I give £10,000 to my nephew, Nalin.”

• (a) Minor crossing out & rewriting
  Tamal lightly strikes through “£10,000” and writes “£20,000” above it, without resigning and re-witnessing.

  • Effect: This is an unexecuted alteration, so the original gift of £10,000 remains valid.

• (b) Properly executed alteration
  Tamal again changes “£10,000” to “£20,000,” but signs the alteration and has two witnesses sign as well.

  • Effect: This alteration is valid and the gift is now £20,000.

• (c) Obliteration
  Tamal draws a thick line over “£10,000” so it is wholly unreadable.

  • Effect: This revokes that original sum altogether. The legacy is effectively zero.

• (d) Obliteration + Unexecuted substitute wording
  Tamal crosses out “£10,000” entirely and writes “£20,000” above it, without properly executing the new words.

  • Effect: A court may see this as conditional on the new words taking effect. Because the new words are unexecuted, the old gift of £10,000 is revived (assuming it can be ascertained).