Yesterday we revisited revocation of wills. The nature of revocation by destruction is interesting as it involves two distinct elements that must both be present:
- the actual destruction of the will and
- an intention to revoke the will.
The actual destruction must be by burning, tearing or otherwise destroying the will. ‘
A Will maker took a pen and drew lines through the operative clauses, his signature and then wrote on the back of the will ‘All these are revoked’. He then threw the will in a pile of waste paper in the corner of the room. His housekeeper retrieved the Will from the pile of papers and kept it in a kitchen drawer until the Will maker’s death eight years later. The Court held that although he had intended to revoke the Will what he did had not amounted to “otherwise destroying” and it was considered valid.
Interestingly Courts have held that where
- a Will maker’s signature was completely scratched out it was considered otherwise destroying.
- parts of a Will were heavily scored through with a ballpoint pen those parts were held to have been actually destroyed.
- a Will maker cut off part of his it was held that the parts cut off were revoked but that the rest of the will remained intact.
Essentially if the destroyed part impinges on the whole will, the whole will is revoked, however If the parts destroyed are less important, only those parts will be revoked.
Importantly the Will must be destroyed by the Will maker or at the direction and in the presence of the Will maker. For example on her deathbed a Will maker directed that part of her Will was to be revoked. The person directed to destroy the Will burnt it in another room. It was held that there was no actual destruction.
However, if the Will maker instructed that their Will is to be destroyed in writing and the Will maker and two witnesses sign the document the destruction (although not in the presence of the Will maker) would effectively revoke the will.
The Will maker must have the same capacity to revoke as is necessary to execute a valid Will. The Court held that an old and confused Will maker who tore her Will into forty pieces lacked the mental capacity to revoke and the will was therefore still valid.
Similarly if a testator is under some mistaken belief a destruction of the will in the circumstances would not lead to revocation, it will not be revoked, as there is no intention to revoke.
If a Will is lost, or found torn or mutilated after the Will maker’s death the will is presumed that the Will maker destroyed the Will with the intention of revoking it.