Part 2 addresses the issue of revocation and includes the tale of a will destroyed in a drunken rage.

This blog is part of a series on the practical considerations and issues associated with writing a will. Part 1 addressed the heading, commencement and testimonium of the Will, Part 2 addresses the issue of revocation and includes the tale of a will destroyed in a drunken rage.

Certainty is important in this area and therefore a revocation clause should be inserted into every will.

If there is no revocation clause in the will any previous testamentary dispositions will be revoked by implication only to the extent to which those dispositions are inconsistent with those of the later will.

While this seems fairly straightforward, the choice of words to use in a revocation clause are important. The phrase “testamentary act” is preferred to the word  “will” in this type of clause because the will-maker may have potentially executed a codicil in the past and as such the revocation clause may arguably not apply to the codicil. Similarly, the will-maker may have executed an informal will capable of being admitted to probate such as a DIY will and then failed to have the will correctly witnessed. The phrase “testamentary act” is a broader concept than the more narrow concept of a will.

The inclusion of an express revocation clause in a will provides strong evidence that the will-maker intended to revoke all previous testamentary instruments whether formally executed before a lawyer or otherwise. While this clause provides strong evidence, it may not be conclusive as a number of cases involving the destruction of previous wills indicate.

Intention to revoke is an essential element of revocation. One of the classic illustrations of the significance of intention involves the case of In Re Goods of Brassington [1902] where the will-maker, in a drunken rage, tore his will into pieces but the next day attempted to glue the pieces together. He told his doctor that he did not know what he was doing and that he wanted his will to remain in place. Ultimately the court granted probate in relation to the torn will because of the lack of intention when he destroyed it.

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