When drafting or updating a will, understanding how revocation and revival work is crucial to ensure that your testamentary intentions are carried out effectively.
Revocation
Revocation is the process by which a will is rendered invalid. This can occur for various reasons, and understanding the circumstances under which a will may be revoked is important for both testators and beneficiaries. There are several ways in which a will can be revoked:
- Marriage or civil partnership will automatically revoke a will, unless the will was made in contemplation of the marriage or civil partnership.
- The execution of a new will automatically revokes the previous one unless explicitly stated otherwise.
- A testator can revoke a will by making a formal written statement of revocation.
- A will can be revoked by physical destruction, if the testator intentionally destroys the document, whether by tearing, burning, or otherwise physically obliterating it.
The revocation of a will must be carried out with clear intention. For instance, if the testator wishes to revoke the will by destruction, they must either destroy the will themselves or instruct someone to do so in their presence. Simply asking a solicitor to destroy the will on your behalf would not be legally sufficient to constitute revocation.
Creation of a new will
A common misconception is that the mere destruction or revocation of a second will automatically reinstates an earlier will. This is not the case. Under English law, the creation of a second will revokes the previous one, and if the second will is later revoked (whether by destruction or otherwise), the first will is not automatically revived.
Revival of a will
In order for a previously revoked will to be reinstated, there must be a clear and deliberate intention to revive it. This can be done by re-execution of the original will. The testator must sign the original will again, following all formalities required for the execution of a will, or by way of a codicil, which explicitly expresses the intention to revive the previously revoked will.
Practical implications: what happens when a will is not revived?
Revoking a will without a replacement can lead to unintended consequences. If a will is revoked and no new will is made, the testator’s estate will be distributed according to the rules of intestacy, which may not reflect the testator’s wishes and may not be as tax efficient.
To ensure that your testamentary intentions are upheld, it is crucial to ensure that you have a valid and up to date will in place. This also provides clarity and certainty to your executors and beneficiaries.
If you are looking to prepare, update, or revoke an existing will, please do get in touch with Roderick Smith or any other member of the Brecher LLP Private Wealth team for further advice.
This update is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this update may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.
