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13 March 2019 0 Comments
Posted in Private Client, Private Wealth

A Will is burnt or destroyed so was it revoked? Not necessarily…

Posted by , Associate

The recent case of Blyth v Sykes brought up some interesting issues regarding conditional revocation of a Will. There is little case law in this area of Contentious Probate and establishing whether or not a Will has been effectively revoked is not always as straightforward as it might seem.

How to revoke a Will

There are, broadly speaking, three ways in which a Will may be revoked:

1.    Executing a new Will

2.    Marrying, or

3.    Destroying the original Will with the intention of revoking it.

The leading text book in this area states that a Will is not revoked where “it is destroyed on the basis of any assumption of fact which proves false where the revocation is based on the assumption being correct”.

Blyth v Sykes: The facts

The case involved a missing Will, and whilst the Judge held on the facts of the case that there was no presumption of revocation (so the Will stood), he went on to consider whether if a presumption had arisen that the Will had been revoked, the revocation would have been conditional (and so ineffective).

The Claimant, the Deceased’s daughter, wanted to show that her mother had revoked her Will by destroying it. Her son-in-law wanted to show the opposite as, if the Will stood, he would receive a quarter of her estate (as opposed to nothing if she had died Intestate).

The Claimant gave evidence as to how her mother had wanted her estate to be distributed following the death of the Claimant’s sister, Debbie. Debbie was one of four beneficiaries named in the Will. Following Debbie’s death, her mother wanted her estate to be divided equally between the Claimant, her son and her son-in-law (Debbie’s husband). She specifically did not want Debbie’s children (her grandchildren) to inherit.

The Claimant explained to the court that the reason her mother destroyed her Will was because the Will would not achieve her objectives, set out above. It would instead have seen her estate divided four ways with one quarter going to her grandchildren. She asserted that the Will was revoked because her mother tore it up with the intention of revoking it. Her mother incorrectly assumed that destroying the Will would achieve the distribution she wanted.

It was accepted that the Intestacy Rules (which would have applied had the Will been effectively revoked) would not achieve the mother’s wishes either because her son-in-law would get nothing and the grandchildren would share one third of the estate.

The Claimant argued that the suggestion set out above, that revocation based on an incorrect assumption of fact was ineffective, was an oversimplification of the law. She asserted that revocation could only be effective where it was conditional upon the destruction of the Will having the effect the testator wanted or expected. What might be a condition in one case did not mean it would be a condition in another – each case was fact sensitive.

The Judge recognised that each case turns upon its own facts. He found on the facts, and even though there was no direct evidence that the testator revoked her Will on the condition that it would have the effect she intended, had she revoked it this would have contingent on revocation having that effect; she would not have revoked it had she been aware that this would not be the effect.

Had she destroyed the missing Will, her intention in doing so would have been conditional upon her two surviving children and her son-in-law receiving a third of the estate each and her grandchildren not directly benefiting. Since that would not have been the effect, the revocation would have been ineffective.

Establishing whether or not a Will has been effectively revoked is not always as straightforward as it might seem. This is a difficult area where expert advice should be sought at an early stage.

For advice on revoked or contested Wills contact our expert Contested Wills, Trusts & Inheritance Disputes team on

020 7282 4310     Email usprivatewealth@roydswithyking.com

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