Tears of joy

What is the process for validly revoking a Will?

Carry Keats lay on her deathbed, aged 92, with an £800,000 fortune set to pass to her cousins via her Will, prepared by her long-term solicitor, Hafwen Webb. However, Mrs Keats had recently had a falling out with her cousins after she was told by them that they would, “put [Mrs Keats] in a nursing home if she had another fall.” It’s safe to say that Mrs Keats was not a fan of such a suggestion as, less than three weeks before she died, she tore up her Will on her deathbed.

Due to her failing strength, Mrs Keats was unable to tear all of the way through the Will, tearing only three quarters of the Will. Hafwen Webb, who was in attendance to Mrs Keats at this time, finished off the job and tore the remaining quarter of the Will.

As Mrs Keats no longer had a Will, her entire estate would pass under the intestacy rules. This means that her sister, Josephine Oakley, would inherit Mrs Keats estate rather than her cousins. Consequently, Mrs Keats’ cousins issued a claim in the High Court, stating that Mrs Keats did not validly revoke her Will and that the cousins are, therefore, the true beneficiaries of Mrs Keats’ estate.

The question that the High Court has to decide, therefore, is whether Mrs Keats’ actions constituted a valid revocation of her Will.

Revoking a Will

Under section 20 of the Wills Act 1837, 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.” 

The limbs to revocation are, therefore, as follows:

• there must be burning, tearing, or destruction of the Will;
• this destruction must be by the testator or by someone in the testator’s presence whom the testator has instructed to destroy the Will; and
• the destruction must have intended to revoke the Will.

In Mrs Keats’ case, these three limbs can be succinctly described as: destruction, instruction, and intention.

Destruction

The first limb for revocation in Mrs Keats’ case appears on the face of it to be straightforward; the Will was torn and, effectively, destroyed. However, due to Mrs Keats’ frailty, she was unable to completely tear the Will and it was Hafwen Webb who destroyed the Will by finishing the job. This presents an issue as Mrs Keats’ cousins have argued that one person must complete the entire destruction process. It is not known on what basis they are making this argument, but it is anticipated to be unsuccessful.

Instruction and intention

Hafwen Webb has maintained the position that the final quarter of the Will was torn at Mrs Keats’ request,  in Mrs Keats’ presence, beside her deathbed; this is not in dispute. Furthermore, the case of In the Estate of Kremer [1965] details how a solicitor can validly revoke a Will on behalf of a client (provided that they carry out the destruction in the testators’ presence). However, Mrs Keats’ cousins questioned whether Mrs Keats had the requisite capacity to instruct Hafwen Webb to destroy the Will.

The capacity required in the context of revoking a Will is the same as that required to make one, testamentary capacity. There are four ‘limbs’ to testamentary capacity, as per Banks v Goodfellow [1870], which require satisfaction before one can be deemed to have testamentary capacity. For a deep dive into testamentary capacity and the four limbs of Banks v Goodfellow, please see our article entitled, ‘Challenging a Will based on lack of capacity: a guide to testamentary capacity’. In short, Mrs Keats needed to appreciate what revoking her Will meant for her estate, the size of her estate, any claims against her estate, and must not have been suffering from any delusions of the mind. It is the argument of Mrs Keats’ cousins that, at the point of instructing Hafwen Webb to destroy the Will, Mrs Keats was unable to appreciate these factors.

Mrs Keats was in a considerable amount of pain in the final few weeks of her life and was on strong painkillers. Furthermore, Mrs Keats had previously expressed that she did not want her sister to inherit from her estate due to a past infidelity. Mrs Keats’ cousins argue that if Mrs Keats did have testamentary capacity, she would have been able to appreciate that by revoking her Will, her sister would inherit her entire estate which Mrs Keats would never have wanted were she thinking clearly.

Hafwen Webb, however, contends this point, noting that, “[Mrs Keats’] character hadn’t changed. She was still the same old Carry. She knew who I was and why I was there.” Hafwen Webb detailed how Mrs Keats’ sister would inherit under intestacy rather than her cousins, “[Mrs Keats] said [her] father would be pleased.” Finally, when the Will was torn, Hafwen Webb described Mrs Keats as, “[looking] at peace.” Despite this, Hafwen Webb accepted that Mrs Keats did lose testamentary capacity once her painkilling injection took effect, but this was not until the end of Hafwen Webb’s visit.

Conclusion

Judgment in this case is expected to be handed down in the coming months, but it is abundantly clear that revoking a Will is not as simple as simply destroying it. Mrs Keats’ case has clearly illustrated just how important testamentary capacity is for revocation. Birketts’ Private Client Advisory Team can assist you if you wish to validly revoke a Will. If you believe that a Will has been invalidly revoked, please contact our Private Wealth Disputes Team.

This article was written by Ben Green, Solicitor. For any enquiries, please contact a member of our team on 01473 406386 or at disputeawill@birketts.co.uk.