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Cruel Intentions, or Inadvertent Consequences? Revocation, Revival, Republication and Losing The Will
Date: 27/02/2024 Type: Articles Topic: Private Client | Trusts | Wills and Estates | Inheritance | Next Generation Wealth | Investment and HNWI’s | Tax |Marriage & Civil Partnership
Wills made before 1 January 1983 (“pre-1983 Wills”)
For pre-1983 Wills, a will made in contemplation of a marriage is not revoked by that subsequent marriage. Similarly, a pre-1983 Will exercising a power of appointment is generally not revoked by a subsequent marriage, subject to limited exceptions.
Wills made on or after 1 January 1983 (“post-1983 Wills”)
For post-1983 Wills, where it appears from the will that the testator was expecting to be married to a particular person and intended that the will should not be revoked, the will would not be revoked by the subsequent marriage to that person. The same applies where there is an intention that a specific disposition in the will should not be revoked.
In both scenarios, a subjective test is applied (i.e. it is what the testator thought at the time the will is made). It is also possible that a will can be conditional upon a marriage or civil partnership taking place, the will not taking affect until that condition is satisfied.
The exception in respect of powers of appointment is also preserved for post-1983 Wills, though it catches a wider range of testamentary appointments.
A surviving spouse or civil partner may have the option of pursuing a claim under the Inheritance Act if reasonable financial provision has not been made for them as a result of a revocation or otherwise.
As for the dissolution of marriage, the testator's former spouse is deemed to have died on the date on which the marriage was dissolved. Similar provisions apply to civil partnerships.
Voluntary Revocation
A will can be voluntarily revoked by:
- A later will or codicil. Whilst not essential, an earlier will (or wills) can be revoked by an express clause of revocation in a subsequent will or codicil. Testators ought to exercise caution and consider carving out any wills which relate/apply to assets in other jurisdictions;
- Some writing declaring an intention to revoke the will, duly executed as a will; and
- Burning, tearing or destroying the will, the same being carried out by the testator or someone in their presence and by their direction, with the intention of revoking it. There must be an act of destruction, an intention to revoke and the will must be injured. The intention must continue until the document is destroyed (i.e. if the destruction is incomplete the will is unrevoked because the intention to revoke ceased before the act was complete). Note that writing ‘cancelled’ or striking through the will with a pen is insufficient to revoke a will, even if it was done with the intention of revocation.
Whether or not the revocation is effective is dependent upon the intention of the testator. Revocation is not proven by implication or inference, unless anything is done by the testator or by their direction which, if there was an intention to revoke, would amount to a revocation. In such circumstances there is a rebuttable presumption of intention and it is for the party seeking the revocation to prove it. Without intention, there will be no revocation, even if (for example) a will is destroyed inadvertently.
Revival and Republication
A revoked will, provided it has not been destroyed, can be revived by re-execution or by executing a codicil. There must be an intention to revive the will and, if successfully revived, it will take effect as though it was made on the date it was revived.
Alternatively, there may be circumstances in which an unrevoked will or codicil is simply confirmed, rather than restored. This ‘republication’ can occur upon re-execution of the will for the express purpose of republication. It could alternatively occur constructively through making a codicil or some other testamentary instrument from which the inference can be drawn that it is to be read as part of the will. A successful republication has the effect of moving the will’s date to the date of the republishing instrument, though there are some limited circumstances in which it can be held that the will does not operate for all purposes as though made on the republishing date.
A Lost Will
There can be circumstances in which a testator's will cannot be found. A will does not take effect until after death and, generally speaking, it can be changed or revoked at any point during the testator’s lifetime. After the death of the testator, it might be necessary for those close to the deceased to undertake a search for a will.
Sometimes the original will cannot be found or only a copy can be produced. In these circumstances the personal representatives are placed in a difficult position. The starting point is that the original will must be provided with the application for probate (as a copy will not normally be accepted by the Probate Registry, subject to some exceptions).
The personal representatives should conduct a thorough search of the deceased’s papers to try and locate the original will. This would normally include searching the deceased’s own files and documents and making enquiries at local solicitors, particularly solicitors who dealt with the deceased during their lifetime. The will may have been deposited with a national will registration company, although the use of those companies is not compulsory and a check with one of those companies cannot be treated as an exhaustive search.
If a will which was last known to be in the deceased’s possession cannot be found upon their death it raises the question of whether it has been lost or destroyed. If the will cannot be found there is a presumption it was revoked by destruction by the testator. However, it may be possible to make an application to court for evidence of the will’s contents to be accepted in place of the original will.
In some very limited circumstances, evidence of the testator’s intentions can be put forward in place of the will to show that it had not been intentionally destroyed. An example may be where the will has been destroyed in a property fire or a flood and there is evidence remaining of the will’s contents, such as a photocopy or discussions with the deceased. In these limited circumstances this may be evidence that the will was not intentionally destroyed.
David is a Principal Associate in Weightmans’ Disputed Wills, Trusts and Estates team and deals with a wide range of complex contentious trust and estate disputes. For more details visit https://www.weightmans.com/people/david-mcguire/.
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David McGuire - Weightmans
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