Revoking Or Amending Your Will
Gordon Bowley has practised as a family solicitor for over thirty years. This is his second book aimed at helping lay-people reduce or avoid entirely the exorbitant cost of consulting a solicitor.
AMENDING YOUR WILL
If you make an error when you are typing or writing out your will, it is better to destroy it and start again, but if you decide that to do so would be too inconvenient, you can cross out the offending word or words or, if appropriate make an interlineation or insertion, but whatever you decide to do make sure that after the alteration the will remains legible and your meaning is clear and unambiguous. All alterations must be initialled, first by you and then by those who witness your signature and before the final signing process is completed, to show that the alterations were made before the will was completed. If the alterations are not initialled in this way and the original writing is still legible, a court will give effect to the will in its unaltered form, but if the alterations are not initialled and the original wording has been obliterated and is illegible, both the original and the altered wording will be ignored and the will will take effect as if there is a blank space in the will.
If you decide that you wish to change your will after you have made it, ideally you should revoke the will and make a new will, but if the changes are minor, such as deleting or adding a beneficiary, guardian or executor, you can do so by making a codicil to your will. A codicil is a separate supplementary document which adds to or varies an existing testamentary document; a specimen form of codicil is to be found in the appendix to this book. If you do make a codicil, be certain to read it over in conjunction with the will and any codicils you may have made earlier to be sure that the provisions of the documents do not conflict. Codicils must be signed and witnessed in accordance with the rules set out in Chapter 2 for the signing of wills, but your will and its codicils need not have the same witnesses.
REVOKING YOUR WILL
The privileged wills of those engaged in actual military service and sailors at sea
In the same way as you can make a will at any age and orally or without any formalities if you are one of the above persons, you can similarly revoke your will at any age and orally or without any formalities if you come within the above classes.
If you do not come within one of the above classes your will will only be revoked in one of the following ways.
Revocation by marriage or registration of a civil partnership
With the exception of what is said below in respect of the exercise of a power of appointment by will if you have an existing will when you enter into a valid marriage or civil partnership, the mere fact of the marriage or partnership will revoke the will unless the will shows that it was made with that particular marriage or partnership in mind and you do not intend it to revoke the will. The will may show your intention in respect of the person concerned either by expressly saying so or by clear implication, such as referring to him as your fiancée or future husband or partner.
If you wish the will to be effective only if the event takes place, say in the will that it is to be conditional upon it taking place within a specified period, for example, a year. If a will apparently made with a particular marriage or partnership registration in mind is not made conditional upon the marriage or partnership registration taking place within a specified period it will be effective until it is revoked by one or more of the other methods of revoking wills irrespective of whether or not the marriage takes place or the partnership registration is made before you die.
Marriage to or registration of a partnership with one person will, of course, revoke a will which states that it is made in contemplation of marriage or partnership with a different person.
Any appointment of property which you make by your will in the exercise of a power of appointment which you have will not be revoked if you subsequently enter a civil partnership or marry unless the property would form part of your estate if you had not made the appointment.
Revoking your will by destroying it with the intention to revoke it
Your will will be revoked if it is destroyed by you or by another person at your request and in your presence. In either case you must intend that the will shall be revoked.
The formalities must be strictly followed and you must have the requisite intention. It is not sufficient to write ‘revoked’on the will or to cross out part of the will. If the will is only partially destroyed or obliterated, e.g. by tearing a piece out of the will, unless that piece is a vital part of the will, only the part torn out or obliterated will be revoked and the rest of the will will remain valid. Neither is it sufficient if you accidentally destroy the will or if you are so drunk that you do not know what you are doing when you do it or you otherwise lack mental capacity. Moreover, if you ask someone to destroy your will for you, the destruction will be ineffective unless it is done in your presence: for this purpose presence is narrowly interpreted and it is not sufficient if they take it into another room to destroy it.
Revoking your will by implication
If you make a later will or codicil containing no revocation clause but containing provisions which are inconsistent with your earlier will, the provisions of your earlier will which are inconsistent with the later one will be considered to be revoked, but the other provisions of the earlier will will remain valid, as will all the provisions of the later will.
If you make a later will or codicil containing no revocation clause and the provisions are not inconsistent with your earlier will, both the earlier will and the later document will be effective.
Revoking your will by an express revocation
By far the best way of revoking provisions of your will is to make a new will or codicil which contains a clause which expressly revokes the earlier will in its entirety or expressly revokes only the provisions which you wish to revoke. If you have several wills, for example a will dealing with your property in England and another will dealing with property abroad, take great care to ensure that the revocation clause revokes only the will that you intend to revoke and that you do not unintentionally revoke both wills. Although section 20 of the Administration of Justice Act 1982 permits a court to rectify a will in cases of clerical error or when a draftsman had failed to understand the testator’s instructions and the court has an inherent jurisdiction to omit words from a will when it is proved, if there is an express clause revoking a previous will, there is a strong presumption that it expressed the testator’s wishes and clear evidence to the contrary will be required to discharge the very heavy burden of proof which is upon those seeking to contend otherwise.
Dependent relative revocation
For the sake of completeness I mention that if you purport to revoke a will or a bequest on the basis that a new will or bequest which you make is valid, or that the old bequest is covered by the laws of intestacy and this is not so, then the old will or bequest will stand and not be revoked. This rule is known in law as the doctrine of dependent relative revocation. An example is the recent case of Re Finnemore (Deceased) in which the testatrix had made three wills each of which contained revocation clauses and benefited her daughter. The daughter’s husband witnessed the last two wills and this would normally cause the bequests to the daughter to fail. However, the court decided that the revocation clauses in the later wills were intended to be conditional upon the gifts to the daughter in those wills taking effect and because the gifts in those wills were made void by the husband witnessing the wills, the bequest to the daughter in the first will would not be revoked and would take effect.