Revocation of a Will
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Time, ideas, and motives evolve and such can happen when you have already written a Will relating to the future of your property. Because a Will is considered, a unilateral contract by a person call a testator regarding the faith of his or her property after death, the testator can revoke a will at any time. Revocation of a Will can be voluntary by the testator or involuntary by the operation of law according to section 20 of the Wills Act 1837. A Will can be revoked by; actual destruction, marriage, written declaration of intention to revoke, another Will/Codicil, or by conditional revocation. Section 20 states that “No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”
Revoking a Will here means that the Will shall cease to exist or will not be legally binding after revocation. The following paragraphs will be explaining ways by which revocation of a will can take place. Revocation of a Will is either be voluntary or by operation of law.
Revocation of a Will by Marriage (Involuntary revocation of a Will or Revocation by operation of the law). Any Written Will before marriage is revoked automatically upon future marriage according to Section 18 of the Wills Act 1837. The automatic revocation is as a result of the operation of the Law. Section 18 of Wills Act 1837 states that “a Will made by a man or a woman shall be revoked by his or her marriage”. The subsequent Marriage must be valid and legal for it to revoke a Will. A celebration is not enough reason to prove that the marriage is legal as was in the case of Mette and Mette (1859) where it was held that the marriage was not legal and therefore could not automatically revoke a Will.
Therefore, Section 18 of Wills Act lays the general rule that a Will is automatically revoked upon marriage unless that the Will was made in contemplation of that same marriage that has occurred after the Written Will. This means that, if a testator writes a will on grounds that he or she is going to get married to Berinyuy and also states that the marriage will not revoke the Will, and the testator subsequently gets married to Berinyuy, that marriage will not revoke or make the Will void. Besides, a Will shall not be void if the testator’s family (the wife and issues) are not entitled to any benefit in default of appointment. Section 177 of the Law of Property Act 1925 corroborates the fact that a Will written in contemplation of a marriage shall not be revoke or void. Section 18 of the Will Act 1837 and section 177 of the Law of Property 1925, therefore, have the following two exceptions to automatic revocation of a Will by marriage in details
Wills written in Contemplation of Marriage: In line with the equitable maxim “he who comes to equity must come with clean hands”, it will be unfair for a Will to be void upon marriage when it was clearly stated in the Will that “this Will shall not be revoked upon my marriage to Berinyuy”. Section 177 of the Law of Property 1925 reads, “A will expressed to be made in contemplation of marriage shall not be revoked by the solemnization of that marriage”. This means that before the testator drafts a Will, when he or she has already made known that he is going to get married and that the marriage Will not revoked the said Will.
For this exception to hold, the testator must states/name the particular person to whom he or she intends to get married. That is, a testator must states the future wife or husband with the name “This Will not be revoked if I marry Berinyuy”. Nevertheless, if a testator generalized the contemplation of the marriage, this exception will not be applicable for example, “this will not be revoked if I marry in future”. It is worthy to note that, a testator can in a Will identified a particular disposition or part of a Will that cannot be revoke by marriage for example, “if I marry Berinyuy, the family house I offer to my mother in the previous Will cannot be revoked”
In addition, for contemplation of a marriage to be an exception to revocation of a Will, the said marriage must be a future marriage. In the case of Sallis v Jones (1936), ( https://library.croneri.co.uk/cch_uk/ross/22-050) the Will was not revoked on grounds that the marriage was not in the future as well as the Will was too general. The last line of the Will read, “This Will is made in contemplation of marriage”
Disposition in Will in the exercise of a Power of appointment: Section 18(a) states that “A disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testator’s subsequent marriage unless the property so appointed would in default of appointment pass to his representatives”. This means that it will be useless to revoke a Will when no benefits will add to the family of the testator. This was confirmed in the case of Re Gilligan (1950). Furthermore, a valid covenant as was in the case of Re Marsand, T will not be revoked by subsequent marriage.
Revocation of a Will by actual destruction
Actual destruction here means that a testator has intentionally decided to tear or destroy the Will to revoke it. For a Will to be revoked, there are two ingredients, which must be fulfilled, that is the intention to revoke and the act of destruction must take place. Section 20 of the Wills Act 1837 is to the fact that a Will may be revoked by “Burring, tearing or otherwise destroying the same Will by the testator or by someone else in his presence and by his direction, with the intention of revoking the same”
The two conditions, that is the intention and actual destruction of the Will must be concurrent for revocation of a Will by destruction to be legally binding (this was confirmed in the case of Re Sabatinin (1969) 194 S. 335. In addition, the case of Brunt v Brunt (1973) 3 P&D37). The act of destruction must be done physically by the testator or in presence of the testator and by his/her directions. This was demonstrated in the case of Estate of Nwa Gwendoline (1987) suit No HASP 114/1987, where the testator in a Will leaved an estate to her nephew, and later tear the Will to revoke it. Cameroon’s Court, The High Court of Buea held that the act of tearing was the revocation of the Will since she had the intention to revoke which was followed by actual destruction. If another person rather than the testator is destroying the Will, the destruction must be done in the presence of the testator. Even if the testator gives consent and it is not destroyed in his or her presence, the revocation of the Will shall not be legally binding. This was evident in the case of Goods of Dadds (1857) where the testator was on her sickbed, she removes the Codicil (an addendum to a Will) with the intention to revoke it. She established this in front of her executor and in the presence of a witness (neighbor). The Codicil was later taken to the Kitchen by her executor and the neighbor and burnt there and not in her presence. It was held that the destruction of the Codicil in her absence (the testator) did not amount to effective revocation. This is because the intention and destruction must be concurrent and in the presence of the testator.
Can a will be revoked simply by writing on “this Will has been revoked”? Can a Will be revoked simply by writing the word cancel or putting a mark on it? Alternatively, can a Will be revoked simply by throwing it? Intention to revoke a Will without actual destruction will not amount to legal revocation of a Will and destruction without intention will not amount to effective revocation. In the case of Enie Thomas John 1996, a testator wrote a Will and several codicils in 1990, after six years, intending to revoke the said Will and Codicils twisted them and threw them in the dustbin. His 19-year-old daughter retrieved the Will and kept it. After the death of the testator, the daughter produced the Will and Codicils and was admitted to probate. The High Court of Kumba in Cameroon held that the Will was valid. This was because, though the testator attempted to revoke the Will by destruction, it was actually destroyed and thus, was not sufficient to amount to a revocation.
In the case of Gill v Gill (1909), an angry wife tore a Will after an argument with the husband. The husband made the Will and leave everything to his wife. After the tearing of the Will, the husband said to the Wife that he was not going to make another Will again. It was held that the destruction of the Will was not by the directives of the testator and the Will remained effective after the death of the husband.
Revocation of a Will by a written declaration
Revocation of a Will by declaration mostly goes with privilege Wills. That is a person who is entitled to draft a privilege Will may formally or informally revoked a Will. Examples of those who can make privileged Wills are soldiers, pilots, etc. For example, a soldier may be on the battlefield or the mission and made a declaration by writing a letter or mail to a guardian or relative to burn or destroy a Will he or she had drafted. His or her declaration will amount to revocation because he or she can also draft a Privilege Will while on duty (which does not require due processes of drafting a Will). This was confirmed in the case of the Estate of Gossage (1921) Probate 124
Revocation of a Will by another formally executed Will or Codicil
The testator can revoke a Will by drafting another Will or a Codicil. For this to happened, a clause must be inserted into the new Will declaring that, the testator has revoked part or whole of previews Wills or Codicils. For example, a clause like “I revoked all former Wills and Codicils and declare that this is my last Will” can be inserted into the newly drafted Will or Codicil. The above clause will revoke all former wills. Simple expressions such as, “this is my last and only Will or Codicil” do not amount to revocation of previews Wills. Section 20 of Wills Act 1837 states that another duly drafted/executed Will or Codicil can wholly or partially revoke a former Will. This was confirmed in the case of Lowthorpe-Lutwidge v Lowthorpe-Lutwidge.
Berinyuy Cajetan is the founder and publisher of Human Rights and Legal Research Centre (HRLRC) since 2017. He has intensive experience in strategic communications for Civil Society Organizations, campaign and advocacy, and social issues. He has an intensive experiencing in human rights monitoring, documentation and reporting.
