Revocation of a will by destruction
Wills can be validly revoked if the person who made it decides to destroy it. Section 20 of the Wills Act 1837 states that a will can be deemed destroyed and made invalid by several means, including: “by 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”.
What happened in the estate of Carry Keats?
Carry Keats had an estate of value in the region of £800,000 and died at 92 years old. Carry decided to change the way she wanted to distribute her estate in her final weeks whilst in hospital. At the time she had a will that gave most of her estate to her cousins; however, after a disagreement, Carry decided she wanted to take action to prevent her cousins from inheriting her estate.
Carry called her long-standing solicitor to attend her deathbed and asked him to bring her will. Upon his visit he allegedly gave advice that the destruction of Carry’s will would lead to Carry’s sister inheriting the entirety of the estate. This would be the case because Carry’s estate would have fallen into intestacy and distributed according to a formula that would give her sister the entire estate based on what relatives she had that survived her.
The solicitor maintains that Carry had capacity at this point and after receiving this advice then proceeded to physically tear three quarters of the way through her will. Carry was intending to destroy the will but was not strong enough and then instructed her solicitor to finish the task in front of her.
The solicitor accepted that Mrs Keats had lost capacity by the end of the visit after a painkilling injection took effect, but maintained that he had a window of capacity and was confident she knew what she was doing and she wanted to tear up the will.
What are the legal issues around destroying a will on the deathbed?
Carry’s cousins have disputed that the will was validly destroyed. They maintain that the will should stand despite destruction. They allege Carry did not have capacity at the time she destroyed the will because of her medical condition. The cousins allege the instructions to the solicitor to complete the destruction of the will were also invalid because of Carry’s medical state. They argue that if Carry had capacity she would not have wanted her sister to inherit her estate because her sister had allegedly committed acts of infidelity in the past, which was why Carry had allegedly chosen to exclude the sister in the will she had created several years before her death.
The cousins have also disputed that the correct process to destroy the will was followed. They state that Carry should have destroyed the will entirely by herself or instructed her solicitor to do it entirely himself. They allege that a hybrid method is not allowed according to the law.
The case has recently been heard by the Court and a judgment is expected in the coming months which should bring clarity as to the interpretation of almost 200-year-old law as to the revocation of a will.
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