Will mutilated at death

Where will in T's custody

and on death found
torn or mutilated, presumption
that will torn or mutilated by T
with intention to revoke wholly
or partially

Where T makes later

will/codicil with necessary
animus revocandi

Bell v Fothergill
(1870)

Where later
instrument available at
death through loss or accidental
destruction
Revocation takes place at
time of execution of later will
if execution of later will can be proved
Failure to find later will not
sufficient for Revival
of earlier Will
Propounders of later Will
must adduce evidence of
-due execution of later will/codicil
-terms of later will/codicil express
or impliedly revoked earlier will/codicil
-copy of will, wriiten instructions,
etc or clear compelling oral
evidence
Balance of probability is the
usual civil standard

Implied Revocation
Later will doesnt automatically
revoke prior ones
Will may revoke previous
instruments (fully or
partially) by implication
Occurs where later will
rehearses the provisions
of the earlier one, or
inconsistent with it

Where multiple later incompatible

wills and unsure of when either
made

In the Estate of Bryan

[1907]
[where earlier will disposed
of entire estate and no
express revocation in
later will - similar
dispositions as earlier
will but later will failed
to dispose of residue Court held earlier will
could not stand - intention
re clauses on trustees etc
could not have been to
exist twice - held
later will revoked earlier
will and residue devolved
as intestacy]

Rebuttable presumption

Revocation
Wills are revocable
Mode of revocation is
specified in Wills Act
Wills Act section 13
[Revocation by Marriage]

Sprigge v Sprigge
(1868)

Formally executed writing

declarating intention to
revoke
Destruction

Wills Act section 15

[Revocation formalities]

Destruction
Wills may be revoked, whoolly
or partially by burning, tearing, or
otherwise destroying the instrument
once T has animus revocandi
With intention to revoke

Wills Act section 15

[...by the 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,...]

Must perform BOTH the act

WITH the INTENTION

Revocation
The court will determine,
for partial sections, whether
the prior parts still serve
any purpose - if it does then
it will be admitted to probate

Simpson v Foxon
[1907]
[where three wills
1st disposed of all
estate, second stated
"this is last and only will'
of me", third "codicil to the
last will" - held that
"last and only will" not
sufficient as expess revocation
clause - test to see
whether three instruments
could stand together,later
will revoke only to extent
of inconsistency]

Another will or codicil

Subsequent will/codicl
executed in compliance
with established formalities
May be expressly or
impliedly revoke
May revoke only part or
all of earlier will/codicil

Express
Well drafted revocation
clause that T revoking
all wills and testamentary
dispositions made by him/her
While no established
wording - "This is my last will"
or similar phrase not sufficient
to establish revocation
Intention is vital - T
must have animus revocandi
Inclusion of revocation
clause in Will raises
rebuttable presumption
that T intended to revoke
all previous wills
Sotheran v Dening
(1881)
[party seeking to rebut
presumption bears heavy
onus of proof that T
had contrary intention]

Rebutted if - clause
subject to express condition
which not satisfied
Rebutted if - revocation clause
incorporated in will by mistake

Re Phelan
[1972]
[T failed to delete revocation
clause in multiple
subsequent wills but intention
was to divide property over
4 wills - held wills admitted to probate
and revocation clauses
ignored b/c T did not know
and approve of them
[different from case where T
deliberately include
revocation clause but
mistaken as to legal effect]]

T must intend to revoke whole

or part of will while act of
destruction taking place
Mental requirement similar to that
of making will
If T of unsound mind, while
destroying will then lacks
necessary animus
(likewise if T drunk at
material time)
Will destroyed accidentally
not within terms for revocation.
Likewise will intentionally destroyed
under mistaken belief - e.g. that will
invalid or already revoked
Court will look at
condition of will after
act of destruction to determine
likely intention -e.g. different b/w
signature being destroyed and
certain clauses etc can be partial revocation

Another Will or codicil

Subsequent marriage
Re Howards [1944]
[Where T made first will
giving estate to son, subsequently
made two wills on same day
benefiting son, other benefiting wife,
both wills contained revocation clause;
Courts held that since both later wills
incompatible and no evidence of
when each executed, neither of wills
admitted to probate; estate to intestacy
as both revoked earlier but non
could be admitted to probate]

No presumption arises
in cases where insanity
supervenes after deate
of execution of will when
known to be in T's possession
[person urging revocation has
burden of showing that T
was of sound mind at time of
such destruction]

Intention to Revoke
(Animus Revocandi)

Cheese v Lovejoy
[as per James LJ]
["All the destroying in the
world without intention will
not revoked, ...nor will all
intention in the world without
destroying.."]

Formally executed
writing declaring
intention to revoke
Some writing required
declaring intention to revoke;
executed in accordance with
formalities requirements for
Wills
Wills Act section 15
[...or by
some writing declaring
an intention to revoke the same,
and executed in the manner
in which a will is hereinbefore
required to be executed,...]

Examples of Writing
In the Goods of Gosling
(1886)
[codicil obliterated, at foot of
codicil statement "We are witnesses
to the erasue of the above" - statement
signed by T and attested by two Ws;
held statement effective 'writing' ]

In the Goods fo Durance

(1872)
[Where T wrote to another
person directing him to get will and burn it
showing strong intention to revoke will]

Re Spracklan's Estate
[1938]
[T's will kep at bank, she wrote letter
to bank manager - "will you please
destroy the will already made out" letter signed and attested to by two
witnesses - held
as soon as letter duly executed - Will
Revoked within Wills Act]

Revocation of will by destruction

does not revoke codicil to will
even where gifts under codicil
subject to conditions
stated in will
In the Goods of
Turner (1872)

Will missing at death

Where will was last known to
be in T's possession and
cannot be found at death presumption is that T destroyed
will with intention of revoking it
Allan v Morrison
[1900]

Rebuttable presumption
depending on circumstances.
Greater the safekeeping,
stronger the presumption esp.
where T maintained tight
custody of will

Sugden v Lords
St. Leonards
(1876)
[T was Former Lord Chancellor
daughter was beneficiary. Several
codicils executed, and will and codicils
all stored in locked box in sitting room.
Spare key existed readily accessible
to anyone in house,
near to T's death, daughter transferred
box from sitting room to her bedroom.
At death, codicils found in box,
will missing, no copy, but daughter
reconstruction accepted. Court
rebutted ordinary presumption
that will destroyed by T with
intention to revoke. Since T was an
experienced lawyer would have
destroyed codicil and made new will]

What makes destruction

physical act or "burning,
tearning or otherwise
destroying"
Symbolic acts are not
sufficient
Stephens v Taprell
(1840)
[where T strike body
of will through with pen and
crossed out name of T not
sufficient as destruction]

Cheese v Lovejoy
[T used pen and struck through
some lines of text in will
writing on back
"All these are revoked" threw ill among waste paper,
maid retreived and kept until
death - held no revocation]

Whole of will not necessary;

fundamental aspects of will
must be destroyed so that
will is undermined as a whole
Hobbs v Knight (1838)
[Signature of T cut out]

In the Goods of Morton

(1887)
[T and W signature scratched out
with a knife]

Re Adams
[All signatures so marked
through with pen that
impossible to discern that
they are signatures]

In the Goods of
Godfrey
[T's signature scratched
out but still discernible held no revocation]

If T fails to complete
all he intends to do
as act of destroying,
revocation will not be
successful

Doe d Perkes v Perkes

(1820)
[T in fit of rage wth beneficiary
started to tear will intending
to revoke, managed to tear
into four pieces before
he was stopped, T then
fitted pieces together
noting that it was fortunate
it hadnt been worse Held - no revocation since T
did not follow through on initial
intention to destroy will]

Destruction by another
allowed in presence and by
direction of T
n the Goods of Dadds
(1857)
[Where T gave another
directions to destroy will in kitchen,
while T remained in bedroom - held
revocation invalid since presence
not satisfied]

Re Booth [1926]
[where will destroyed in
T's presence but without
direction, no revocation,
even where T subsequently
ratifies destruction]