There are three ways in which a will may be revoked. These are by the making of a subsequent will, by marriage/civil partnership and by destruction.
Revocation by the making of a subsequent will
A will is revoked by an express revocation clause in a subsequent will.
If a subsequent will does not expressly revoke previous wills, the provisions of an earlier will would be revoked to the extent of any inconsistent provision in the later will. However, an express revocation clause is usually included.
Revocation of a will by marriage/civil partnership
A will is automatically revoked by marriage, and a testator may therefore be unaware that revocation has occurred.
This rule does not apply where it appears from the will that, at the time it was made, the testator was expecting to be married to a particular person and intended that the will should not be revoked by the marriage. In that case, the will would not be revoked by the marriage to that person. The will must contain clear wording to the effect that it will remain valid following the marriage. The parties must have an intention to get married, although no date for the wedding needs to have been set.
The same points apply in the case of a civil partnership.
Revocation of a will by destruction
A will can be revoked if a testator destroys their will with the intention of revoking it. The intention to revoke must accompany the act of destruction; if a testator destroys their will by mistake then it will not be revoked.
Where the testator was the last person to have the will in their possession, there is no evidence of it subsequently leaving their possession, and the will cannot be found following the testator’s death, there is a presumption that the testator destroyed it with the intention to revoke it.
This presumption of revocation can be rebutted. In the recent case of Blyth v Sykes (2019), the testator’s original will could not be found amongst her possessions, nor at the offices of the solicitors who prepared it. It was argued that the testator had torn it up with the intention of revoking it. However, there was no evidence of it ever having been in the testator’s possession and as such the court held that the presumption of revocation did not arise.
Consequences of a revoked Will
A revoked will can lead to unintended consequences following the death of the testator. If no new will is put in place following the revocation, the intestacy rules will apply. These stipulate who can inherit the estate where there is no will, and may mean that assets do not pass on as the deceased may have wished. For example, the rules do not provide for unmarried partners or step children. In addition, the intestacy provisions can result in inefficient Inheritance Tax outcomes.
Having a professionally prepared will, keeping it under review and storing it with the solicitor who prepared it will help to prevent unintended revocation. It will reduce the likelihood of a will being presumed to have been revoked by destruction, and help to avoid the situation of a will being revoked by marriage without the testator’s knowledge, either through the testator being advised when they make their will that marriage will revoke it, or the will being made in contemplation of marriage.