There are four methods of revoking a will or codicil:
- By marrying or forming a civil partnership;
- By making another will or codicil;
- By making a written declaration executed in the same way as a will; or,
- By destroying the will.
It is the latter of these methods that has garnered a lot of attention recently, owing to the dispute before the Court over the will of Carry Keats. The trial captured the attention of the media and judgment has now been handed down.
Carry died in February 2022 at the age of 92 leaving an estate in the region of £500,000. While in hospital during the weeks before her death, Carry physically ripped three-quarters of the way through her will. The remainder of the will was ripped at her request, by her solicitor. The will had been made eighteen months earlier and provided that the bulk of her estate should be split between five of her cousins. If Carry’s actions had revoked the will by destruction, the practical implication was that Carry’s estate would be administered in accordance with the rules on intestacy and would pass in its entirety to Carry’s sister, Josephine.
The agreed issues were:
- Did Carry sufficiently destroy the will?
- Did Carry authorise her solicitor to complete the destruction of acquiesce in the same?
- Did Carry have the requisite intention to destroy the will?
- If the will was revoked, did Carry have the mental capacity to do so?
Section 20 of the Wills Act 1837 defines as “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.” There are two elements: the destruction of the will itself; and, the intention to revoke the will.
The same level of testamentary capacity to make a will is required to revoke a will. Further information about the applicable test can be found here - Contesting a will on the grounds of mental capacity.
Did Carry sufficiently destroy the will?
Deputy Master Linwood concluded that Carry’s solicitor gave clear evidence as to the destruction and the circumstances at the time. Carry was told that to stop the claimants from benefitting from her estate, she could tear up the will, which she proceeded to do. She was, however, only able to get three quarters of the way through. Carry did sufficiently destroy the will was it was torn as she intended.
Deputy Master Linwood found that the tearing had to be complete for the will. Accordingly, if the answer to issue (b) was that Carry did not authorise her solicitor to complete the destruction, the will would not have been revoked. However, this was not the case.
Did Carry authorise her solicitor to complete the destruction of acquiesce in the same?
The Court found that when Carry could not rip the will any further, her solicitor looked at her and asked if she could help with the remainder to which Carry nodded. The solicitor placed her hands on Carry’s and helped her to complete the tearing. The arguments from the respective parties focused on whether non-verbal communications, such as Carry’s nod, were sufficient authority. Deputy Master Linwood concluded that someone who can speak should not be prevented from positively communicating in a non-verbal way and that Carry had given a positive communication rather than mere acquiescence.
Carry did properly authorise her solicitor complete the destruction of the will.
Did Carry have the requisite intention to destroy the will?
It was concluded that Carry was said to have the requisite intention because of: evidence given by the solicitor that “it was the same old Carry” who had intended this and was known for being stubborn and feisty; Carry was specifically advised on the implications of destroying the will; and, this aligned with earlier instructions given by Carry.
If the will was revoked, did Carry have the mental capacity to do so?
Having concluded that the will was destroyed, the Court addressed the issue as to whether Carry had the mental capacity to revoke the will. Expert evidence was given that Carry did not have capacity while the solicitor remained steadfast that she did, although acknowledged that her capacity was ‘waxing and waning’.
The Court found that Carry did have capacity in the narrow window when the will was destroyed, preferring the evidence of the solicitor who was present over that of the expert. The decision is a stark reminder of how time sensitive decisions as to testamentary capacity can be and the difference that days, or even hours, can make when considering the issue of testamentary capacity.
In sum, the Court concluded that Carry destroyed the will with the intention to revoke it and had the requisite mental capacity to do so. Accordingly, the estate will be administered in accordance with the rules of intestacy and pass to Josephine in its entirety. This was all or nothing claim for the claimants – they will be walking away from proceedings without any benefit from the estate and what is likely to be a substantial adverse costs order after a 3 day trial.
Revoking a will without replacing it can lead to unintended consequences. In the absence of an earlier will, the estate will be administered in accordance with the rules of intestacy which leads to the risk of the estate passing contrary to the deceased’s intentions and/or adverse tax consequences. It is always important to take legal advice and act to ensure your testamentary intentions are formalised.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
