Destruction and Revocation of a Will

The law surrounding revocation of Wills is far from straightforward, especially in instances where revocation occurs due to a form of physical destruction. The legal implications surrounding whether a Will has been validly revoked can be significant, as highlighted in the recent case of Carry Keats.

What happened?

Carry Keats, a 92-year-old woman, attempted to revoke her Will by tearing it in half while on her deathbed. In her Will, she left most of her estate to her cousins; however, after a disagreement, she wished to prevent her cousins from inheriting her estate.

As such, she sought to revoke her Will by tearing it in half. Carry managed to tear most of the document; however, she struggled to fully finish the tear due to her frail condition. Consequently, her solicitor assisted her with completing the act of destruction by asking her whether she needed help, upon which Carry made eye contact with her solicitor and nodded in agreement. This act led to a legal dispute among her relatives, whereby her cousins argued that she lacked the requisite mental capacity in order to revoke the Will, the result being that the Will is still valid, and they would therefore benefit from her estate. In the event that the Will was successfully revoked, Carry would have been treated as having died intestate, ultimately resulting in her sister inheriting most of her estate under the Rules of Intestacy.

What is the law surrounding revocation?

Section 20 of the Wills Act 1837 provides that a Will or Codicil shall be revoked only by the following means:

• By a later Will or Codicil being executed
• By a written declaration stating an intention to revoke the Will
• By burning, tearing or otherwise destroying the Will either by the testator or by some other person in their presence and by their direction with the intention of revoking.

In the event that the Will is revoked by physical destruction (point three above), then there must be an actual (and not a symbolic) burning or tearing of the paper upon which the Will is written. It is not necessary for the Will to be totally destroyed, burnt or torn into pieces. Even if it is partly physically destroyed, this will still be sufficient to constitute a good revocation so long as evidence of an intention to revoke can be established.

An intention to revoke may either be express or inferred. In the case of the latter, it may be inferred from the nature and extent of the act completed by the testator or from intrinsic circumstances.

In the case of Carry Keats, the cousins sought to argue that the revocation was invalid not only because the physical act of destruction was incomplete by Carry, but also that she lacked the testamentary capacity to intend to revoke her Will. In these circumstances, capacity is assessed in the same way which a testator’s capacity is assessed when they are executing a Will. As such, the test of capacity as outlined in Banks v Goodfellow (1870) applied in this case, namely that in order to have testamentary capacity to execute (or revoke) a Will, the testator must be able to meet the following criteria:

• Understand the nature and effect of making a Will
• Understand the extent of the property which they are disposing of
• Be aware of those who might have a claim to their property
• Not suffer from any insane delusion of the mind.

What was the outcome of this case?

Deputy Master Linwood ruled in favour of Carry’s sister, concluding that the Will had been validly revoked. The court’s findings included the following:

• The physical act of tearing the Will was deemed as complete, as Carry had directed her solicitor to finish this act on her behalf in her presence and at her direction
• Carry’s intention to revoke the Will was clear. Her communication to her solicitor to finish the act on her behalf was positive, and her nod, albeit a non-verbal form of communication, was sufficient to indicate intention
• Carry did have the requisite testamentary capacity required to validly revoke her Will, and the court favoured the evidence of her solicitor present at the time over the findings of the expert in coming to this conclusion. This was on the basis that her solicitor had many years of experience in Will drafting, she knew Carry very well over several years and Carry’s instructions to destroy her Will accorded with the solicitor’s knowledge of Carry’s character and family dynamics, and that there was contemporaneous evidence that the solicitor considered capacity at the time of revocation and recorded no concerns in this regard at the time.

The case of Carry Keats serves as a reminder to us all to ensure that our Wills are kept up to date to reflect our current wishes.

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