Torn in two: revoking a Will by destruction
Burning, tearing, crossing out - can a Will be revoked by physically destroying the paper on which it is written?
There are several options for a testator who decides that a Will they have made no longer accords with their wishes. Perhaps the most common option is to do so in writing, usually by creating a new Will which expressly states that any previous Wills are revoked.
An alternative option is to physically destroy the Will. This can be done by tearing or burning the document, or by defacing it to the extent that its provisions are no longer legible, provided that what is destroyed is the original document and not a copy. A third party (such as a solicitor) can also destroy the Will, but it must be done in the presence, and at the direction, of the testator.
Crucially, a testator must also have the requisite capacity and intention to destroy the Will. The test for capacity is the same as the test for making a Will, and is set out in the 1870 case of Banks v Goodfellow. This was affirmed by Re Sabatini [1969], where it was ruled that a person must have the same standard of mind, memory and understanding when destroying a Will as they did when they made it.
These principles have recently been tested by the High Court in the case of Crew v Oakley [2024] 2847 (Ch), which was decided in November this year. The testator, Carry Keats, died aged 92 in February 2022. Mrs Keats had previously made a Will leaving most of her estate to her cousins Angela and David Crew (the claimants), but on 26 January 2022 she sought to destroy the Will whilst in hospital, following a disagreement with the claimants over their plans to move her into a nursing home.
Mrs Keats started to tear up the Will, but was unable to tear beyond three-quarters of the way through. Her solicitor, Haffwen Webb, asked Mrs Keats whether she should assist. Mrs Keats nodded, and Ms Webb accordingly tore the Will completely in two. Ms Webb had brought a draft Will (which left the estate to Mrs Keats’ sister, Josephine Oakley) to the hospital for Mrs Keats to execute, but she was unable to do so as she was by this time falling asleep. Mrs Keats died less than a month after the Will was destroyed, without executing the new Will.
The defendant, Josephine Oakley, Mrs Keats’ sister, subsequently applied for letters of administration on the basis that Mrs Keats had died intestate. In response, Mr and Ms Crew issued the claim, alleging (i) that the Will had not been destroyed sufficiently and had accordingly not been revoked; (ii) that Mrs Keats had not authorised Ms Webb to complete the destruction, and (iii) that Mrs Keats did not have the requisite capacity or intention to destroy the Will at the time. Ms Oakley issued a counterclaim on the basis that her sister had validly revoked her Will and had died intestate.
The High Court found that Mrs Keats had validly destroyed the Will: whilst she had not personally torn it completely in half, her nod to Ms Webb amounted to sufficient authorisation and intention for the destruction to be completed. Doing so removed the claimants from the Will, which aligned with Mrs Keats’ instructions for the new draft Will; whilst she did not execute this Will, she did not express any revocation or alteration of those instructions. It was found from this that Mrs Keats had intended to destroy the Will.
Crucially, it was also found, thanks to the evidence provided by Ms Webb’s detailed note of the event, that Mrs Keats did have the requisite capacity to destroy the Will, albeit that the revocation was found to have taken place during a ‘lucid interval’. Mrs Keats was therefore found to have died intestate, and accordingly her estate was left to her sister, as her closest surviving relative under the intestacy rules, and as Mrs Keats had intended to do in the draft Will.
The case therefore affirms the core principles of Will destruction: whilst it is entirely possible to revoke a Will by simply tearing it up, it is not possible to do so by accident, or through the unauthorised actions of a third party. The tests for capacity and intention remain as robust to destroy a Will as they are to create one in the first place.
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