Revoking a Will by Destruction – Crew v Oakley (2024)

We cannot stress enough the importance of a properly drafted will to ensure your wishes are adhered to after your death.

However, it is also important to regularly review your will and update it as necessary so it always reflects your current wishes.

Once a will has been properly executed and witnessed, there are only certain ways in which it can be revoked, namely:

1. Executing a new will
2. Amending the current will with a codicil
3. Marriage or civil partnership (which automatically invalidates the will)
4. Destruction

Destruction

Section 20 of the Wills Act 1987 provides that destruction means the act of ‘burning, tearing or otherwise destroying’ the will or directing someone in his presence to do so with the intention of revoking the will.

The intention to revoke may be explicit or implied.

In order to have intention to revoke you will need to show ‘testamentary’ capacity which is the same test for making a will

Capacity

Testamentary Capacity is determined by reference to the case of long established case of Banks v Goodfellows (1870) which provided a 4 limb test:

a) Did the deceased understand that they were making a will and the effects
b) Did the deceased understand the nature and extent of their estate being disposed of
c) Did the deceased understand as to those who would have claims on the estate
d) Was the deceased impaired by any disorder of the mind or delusions

The court was called upon to decide whether the testator had capacity on her death bed to revoke her will by destruction in the recent case of Crew v Oakley (2024)

Crew v Oakley (2024)

The case concerned the estate of Carry Keats whose estate was worth about £500,000 net.

One of the Defendants was Carry’s sister, Josephine.

Angela and David, the Claimants, were appointed as executors (and residual beneficiaries)

A number of wills were made by Carry spanning from 2003 to 2020, all by Kirlands Solicitors.

A final will was then prepared in late 2021. In early 2022, Carry was admitted to hospital. The solicitor attended Carry on 26 January 2022 and Carry tore up the 2021 will as she had been keen to cut out the Claimants in their role as her appointed executors and residual beneficiaries.

Carry died on 15 February 2022 aged 92 without executing any further wills. Josephine was due to inherit under the rules of intestacy if there was no valid will in place.

Proceedings were issued in June 2023, heard at trial in October (over 3 days) and judgment handed down on 15 November 2024.

The court was called upon to decide the following issues:

1. Was the Will revoked by destruction pursuant to section 20 of the Wills Act 1837 by the Deceased tearing three quarters and being helped by her solicitor Mrs Hafwen Webb to tear the rest, in particular:
   (i) Did the Deceased sufficiently destroy the Will;
   (ii) Did the Deceased authorise Mrs Webb to complete the destruction or acquiesce in the same;
   (iii) Did the Deceased have the requisite intention to destroy the Will;
2. If the Will was revoked did the Deceased have the mental capacity to do so;

Evidence was heard from factual witnesses (including Carry’s solicitors) and through expert evidence from Dr Series (although he was not called to oral evidence or be cross examined at the trial) who concluded that Carry did not have capacity.

The judge decided that there was “actual tearing combined with intent” as

1. Carry did sufficiently destroy the will as it was entirely torn in half as she intended.
2. There was “positive communication and not mere acquiescence” when “Carry could not complete the tearing, Mrs Webb looked at her and asked if she could help her tear the remainder. Carry, looking directly at Mrs Webb, nodded.”
3. Carry actually intended to revoke the will and/or this could be inferred from the completion of the tearing and positive direction for Mrs Webb to assist.

In addition, the judge accepted Mrs Webb’s evidence over that of Dr Series that Carry had capacity in a very narrow window (which was lost soon after to the extent she could not provide instructions for a new will before she died)

Final Words

These cases are always difficult when trying to piece together facts with the benefit of hindsight.

There appears to be a growing trend that medical evidence is not as decisive as it once used to be and comprehensive evidence from a qualified will writer (or other witnesses) who knew the deceased is much more persuasive. This coupled with detailed contemporaneous attendance/file notes can be the deciding factor in a case.

Our expert solicitors are dedicated to providing clear and strategic advice on all aspects of wills, probate, and estate disputes. If you need guidance on will drafting, revocation, or inheritance matters, contact our Dispute Resolution team on 0330 822 3451 to ensure your wishes are protected. Alternatively, request a callback at a convenient time.