What is a revocation clause in a Will and why it’s important
In general, most people will only ever have a single valid Will in operation at any one time in their lives.
However, where individuals own property in different countries and across different jurisdictions, it is possible to have more than one Will, sometimes one for each country in which a person holds assets.
In these instances, it is very important to ensure that the revocation clauses of your Wills are drafted correctly so as not to accidentally revoke an existing Will that you intend to keep in force.
What is a revocation clause?
A revocation clause usually figures at the beginning of your Will and states that you revoke all former Wills and Codicils and that this is your last Will. This is an important part of your Will, as without it, there could be doubt as to whether you truly intended to revoke any former Wills you may have made. In general, when making a new Will, you are changing its provisions and so it is important to clarify that only the provisions of your most recent Will should take effect at the time of your death.
What happens if you have more than one Will?
However, for those people who have (or intend to have) more than one Will, it is very important to ensure that the revocation clause in one Will (or indeed in a Codicil) does not accidentally revoke a previous Will prepared for a different jurisdiction.
Accidental revocation of one Will by another where the terms of the Wills are very different can result in depriving intended beneficiaries of their legacies in one or more countries. It is, therefore, very important to consider the scope of each Will where a testator intends to make two or more Wills to cover their various assets.
For example, a testator makes a French Will covering only their assets in France in which they leave all of their French assets to their children. They then prepare an English Will, which leaves everything to their spouse. The revocation clause of the English Will revokes all former Wills and Codicils and does not clarify that the scope of the Will should not include those assets situated in France. The English Will, therefore, revokes the French Will meaning that the testator’s children will be deprived of their legacy of the French property as it will go to the testator’s spouse per the terms of the English Will. This could have been avoided by ensuring that the scope of the English Will covered the testator’s worldwide assets except those in France.
The situation would be yet more serious if the testator were unmarried and accidentally revoked their French Will, which left assets to their children. An English Will leaving everything to their unmarried partner which revoked that French Will would have serious tax consequences in France where assets left to unrelated beneficiaries are taxed at 60%. Unlike in England, where a Deed of Variation may be able to undo any damage done by insufficient drafting, the application of a Deed of Variation in France may be viewed as a taxable gift between the beneficiaries in question which would then have its own ramifications.
It is, therefore, very important when preparing separate Wills for assets in different jurisdictions that you seek advice from solicitors with cross-border experience or ensure that your solicitors in the different jurisdictions communicate in relation to the scope and revocation clauses of each Will.
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If you have any questions or would like advice on revocation clauses in your Will, please get in touch with our specialist Wills and Estate Planning team by using our online enquiry form or by calling 0330 404 0768.
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