Revocation of Wills
| Author | Lesley King/Peter Gausden |
| Pages | 55-62 |
5 Revocation of Wills
5.1 Freedom to revoke wills
Testators are always free to revoke their will during their lifetime,
provided they have the appropriate mental capacity. There are very few
decided cases dealing with the mental capacity for revocation but
according to Re Sabatini (1969) 114 SJ 35, a testator must have the same
standard of mind and memory, and the same degree of understanding,
when revoking a will, as when making it.
If a testator has entered into an agreement with another person to make a
will in particular terms and not to revoke it unilaterally (a so-called mutual
wills agreement), the testator is still free to revoke the will. However, the
revocation will not necessarily achieve what the testator wants; if the other
party to the agreement has died having carried out his part of the
agreement, equity will impose a constructive trust over the part of the
survivor’s property that was subject to the agreement. The survivor may
revoke the original will and make a different one but the new will cannot
affect the destination of the property bound by the trust.
A similar principle applies if someone makes a new will and, by doing so,
breaks a contract not to revoke an earlier one (see, further, paras 2.3 and
2.4).
5.2 Methods of revocation
There are three ways to revoke a will:
(a) by later will or codicil;
(b) by destruction;
(c) by subsequent marriage or the formation of a civil partnership.
Subsequent divorce or dissolution of a civil partnership does not revoke
an earlier will but does revoke a gift to the former spouse or civil partner
and his or her appointment as executor (see para 5.6).
Other changes in circumstances, such as the birth of a child, separation,
bankruptcy, etc have no effect whatsoever on an earlier will save for the
implementation of any provisions in the will which might have been
included in anticipation of such events ever occurring.
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