CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – REVOKING A WILL BY DESTRUCTION AND s20 OF THE WILLS ACT, 1837 

WillClaim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss how testators can revoke their wills when their wishes change. Reference is made to  Crew & Anor v Oakley & Ors [2024] EWHC 2847 Ch – a case arising from a dispute over whether the testator had validly destroyed her will or not. 

How do I revoke a will? 
People are free to change their wills if they have the mental capacity to do so. It’s not uncommon for someone’s last wishes to change because of shifting family circumstances, personal relationships or the financial needs of intended beneficiaries.  

There are three ways to revoke a will: 

• By making another will – the new will should contain a clause specifically revoking all previous wills  
• By remarrying or forming a civil partnership 
• By destruction 

In this article we will look at the rules on revoking a will by destruction, using the October/November 2024 High Court ruling in Crew v Oakley to show how the law is applied in practice. 

How do I revoke a will by destruction? 
The Wills Act, 1837 states that physically a will can be revoked by ‘burning, tearing or otherwise destroying’. Destruction must be by the testator or by someone in their presence who has been directed by the testator to destroy the will.  

When directing someone to destroy a will on their behalf the testator must be clear. Passive acquiescence in the destruction of the document is not sufficient for an effective revocation. 

The physical destruction must be backed up by an intention to revoke the will. The terms of a will that is destroyed by accident – without the necessary intention to revoke – can be reconstructed and given effect.  

Finally, the testator must have the mental capacity to revoke the will. The capacity required to revoke a will is essentially the same as that required when making a will in the first place.  

Crew v Oakley – the background 
The claim involved a dispute over the estate of Carry Keats (‘Carry’) who died in February 2022 aged 92. It was brought by Angela and David Crew, Carry’s distant cousins, who were the main beneficiaries of a will made by her in 2020.  

In mid 2021 there was a bitter falling out between the Crews and Carry. Shortly before she died Carry had torn up her 2020 will. She did this in hospital in the presence of her solicitor, indicating that she wished to revoke the will and ensure that the Crews had nothing to do with administering her estate when she died. (They had been named as executors in the torn up will.) At her hospital bedside, Carry’s solicitor clarified that in the absence of another will, Carry would die intestate, and her sister Josephine would be her sole beneficiary.  

As it turned out Carry did not execute another will before she died, and she was treated as having died intestate.  

Following Carry’s death there was, as the judge described it an ‘unseemly scrabble’ for her assets. The Crews and others, including Josephine, quickly sought to secure her properties, each side trying to take control, change locks and deny the other access.  

In June 2023 the Crews issued proceedings claiming that: 

• Carry lacked the required mental capacity to revoke her will. The court heard expert evidence on this point  
• Carry’s’ destruction of the will was not effective. The facts were that Carry’s solicitor had brought the original will to her in hospital. When it came to destroying it, Carry did not have the strength to tear up the entire document herself. Instead she asked the solicitor to help her finish tearing up the document. The Crews argued that rather than directing the solicitor to finish destroying the will, Carry had merely acquiesced in what the solicitor did. This meant that the destruction of the will was unauthorised and therefore invalid. 

The evident animosity between the parties in the case seems to have made an out of court settlement impossible. A three day trial was the result. 

The judgment of Deputy Master Linwood runs to more than 220 paragraphs. It provides a useful explanation of the hurdles anyone considering a claim like this must overcome. Below we identify these key points and summarise the conclusions reached by the judge. 

The Decision 
Deputy Master Linwood identified three issues for decision. Two of these concern us here: 

Issue 1: Did The deceased revoke her will by destruction? 
The judge considered the following: 

• Was the will correctly destroyed? Carry’s solicitor explained to her in hospital that to stop the Crews from dealing with her estate or benefitting in any way she could tear the will up. Content to do this, Carry took the Will and started to tear it. However she could not extend her arms far enough to completely tear the document in two. The solicitor then did so, so that it was destroyed. In light of this evidence the judge rejected the Crews’ argument that there the attempt to destroy the will was unsuccessful   
• Did Carry properly authorise destruction? Remember that the Wills Act also requires the testator to explicitly direct someone to help destroy the will. Had Carry done so here? The judge accepted the evidence that when Carry could not complete the tearing, the solicitor looked at her and asked if she wanted her to help tear the document. In response, Carry nodded. This, in the judge’s opinion amounted to the positive action required by the Wills Act so that Carry properly authorised her solicitor to complete the destruction of the Will  
• Did the deceased intend to destroy the will? The judge was satisfied that Carry had the required intention. In reaching this conclusion, considerable reliance was placed on contemporaneous notes taken by the solicitor, including the record of the specific advice on the effect that destruction of the will would have on the distribution of Carry’s estate. 

In summary therefore the judge found that Carry had revoked her will by destroying it. 

Issue 2: Did Carry have the mental capacity to revoke her will? 
The critical period for establishing Carry’s capacity was around the time that the solicitor attended her in hospital where the will was destroyed. There was an obvious conflict in the evidence here. The medical expert witness was clear. In his report he stated that ‘it is more likely than not that when the Deceased (Carry) partially destroyed her will, she lacked capacity under the test in Banks v Goodfellow, and therefore also lacked capacity to revoke the will’. (You can read more about the Banks v Goodfellow test here)  

The expert reported that while in hospital Carry suffered from delirium which fluctuated in intensity. At the key moment that instructions were taken, it appeared to him that the delirium had not completely resolved. The solicitor on the other hand gave evidence to the effect that Carry did have capacity.  

In the circumstances the judge did agree with the expert witness. But only to the extent that the deceased’s mental capacity fluctuated. At the same time however – and this was critical to his decision – the judge viewed the solicitor’s evidence regarding the bedside meeting so convincing that he concluded that Carry did possess the mental capacity required to revoke her Will.  

Comment 
From this judgment it’s worth noting the way cases like this can turn on very detailed and narrow points. For claimants and defendants alike this makes predicting the outcome difficult. The judge’s subjective view that there was a narrow window in which Carry appeared lucid enough to revoke the will was decisive.  

The case of Crew v Oakley shows that the concept of testamentary freedom (we are free to leave our property in the way we wish subject to certain limited exceptions such as Inheritance Act claims) applies also to the ability to revoke our wills when we change our mind. However a testator who wants to revoke must have the mental capacity to do so. This judgment discusses the issue of mental capacity and revocation with a degree of detail that is relatively rare. It therefore provides a highly useful guide to those raising issues of revocation in will disputes.  

Contact Us 
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask for more information about our no win no fee arrangements, then please do not hesitate to contact WillClaim Solicitors for a confidential no strings chat. You can also call us on 02033225103