When a person (the 'Testator') makes a valid Will, section 20 of the Wills Act 1837 states that it can only be revoked in three ways: by the Testator making another Will or codicil; by them signing a revocation provision (a professionally drafted Will will always include this provision) or by destruction. The Testator must intend to revoke the will and is the only person allowed to validly destroy their own Will. A Will can either be destroyed directly by the Testator or by the Testator giving directions to a third party in their presence. However, where a Testator destroys their Will and does not tell anybody why they have destroyed it, it can lead to confusion and disagreements after they have died.
In the event a Will cannot be located upon a person's death, there is a presumption that the Will was intentionally destroyed by the Testator and therefore revoked. This may not always be the case as sometimes Wills are simply lost or accidentally destroyed. However, once the Testator dies, it is often very difficult to rebut this presumption, and can lead to the Estate passing under intestacy or under a previous Will.
Nevertheless, the courts have recognised this and as such there are a few ways in which this presumption of revocation is rebutted. For example, the presumption could be rebutted by evidence of accidental loss or of conversations between friends/relations and the deceased. Wills are also revoked by marriage or civil partnership, but interestingly a Will is not revoked by divorce.
The recent case of Singh v Vozniak (2016) is a prime example of why it is important to inform people of your wishes and the location of your Will. In this case the Testator, Mr Lutchmadoo, drafted a Will in 2010, but upon his death in July 2012 the Will could not be found. His widow claimed that he had torn up his Will in front of her in April 2012. The widow and other family members disputed whether the presumption that the Will was destroyed intentionally was validly rebutted. In this instance the judge found that, on the balance of probabilities, Mr Lutchmadoo did not destroy his Will with the intention of revoking it, but had instead destroyed it to end a family row. The Will was therefore held to be valid as Mr Lutchmadoo had not intended to revoke it. A lot of the evidence which swayed the judge's decision was based on conversations family and friends had with Mr Lutchmadoo before he died. It took four years from the date of his death for this decision to be reached and during this period the estate not administered, all of which would have led to large expense for the estate and delay.
At Clapham and Collinge we appreciate the importance of keeping Wills, codicils and Lasting Powers of Attorney safe and therefore store any Will we draft free of charge. It is important to have a valid Will which accurately reflects your wishes and which deals correctly with previous and obsolete Wills. Please call us on 01603 693500 for a no obligation discussion about your Will.
For more information on Clapham & Collinge Solicitors Wills, Trusts and Probate team, please see our dedicated webpage following this link.
