Wills Cont'd

• Author: Karen Nunez-Tesheira
• Pages: 46-70

46 / Probate Practice and Procedure

REVOCATION OF WILLS

Statute prescribes the modes by which revocation of a will may be effected.

These are as follows:

•by an attested document executed with the same formalities as

are needed for the making of a will;

•by destruction;

•by subsequent marriage;

•by informal declaration;

•by divorce or annulment.

A. Revocation by Attested Document1

All jurisdictions (save St Lucia)

According to the relevant statutory provisions of the various territories a

will may be revoked by another will or codicil or by some writing declaring

an intention to revoke the same and executed in the manner in which a

will is required to be executed. Revocation of a will can therefore be effected

not only by a later will or codicil but also by some writing which is neither

a will nor a codicil but which is executed in the same manner as a will.

St Lucia

Art 828 (1) and (2) Civil Code Ch. 242 is of the same practical effect.2Art

828 provides that wills cannot be revoked by the testator except:

•by means of a subsequent will revoking them either expressly or

by the nature of his disposition; or

•by means of a notarial or other written act, by which a change of

intention is expressly stated.

2

Wills cont’d.

Revocation, Alteration, Rectification,

Republication, Revival of Wills

Wills cont’d. / 47

Intention to Revoke

All Jurisdictions

However whether the will is revoked by another will, a codicil or some

other document, there must be the intention to revoke — what is otherwise

called animus revocandi. This intention may be expressed or implied:

(i) Express Revocation: An express revocation arises where a latter will

contains a revocation clause—a clause which is usually inserted at

the beginning of a will stating that the testator revokes all former

will. It usually reads as follows:

I hereby revoke all former wills and testamentary dispositions made by me and

declare this to be my last will and testament.

Where there is a revocation clause in a will or codicil there is a

presumption that the testator intended to revoke his earlier will or

wills. This presumption is rebuttable by evidence of a contrary

intention but the onus of proof which is required to displace this

presumption is heavy.3Although strong, the presumption can

nevertheless be rebutted in the following cases:

• where a contrary intention can be proved or shown;4

• where the revocation clause was inserted in the will by mistake.5

• where the doctrine of conditional revocation or dependent relative

revocation applies.6

(ii) Implied Revocation:7Implied revocation arises where a later will or

codicil contains no revocation clause but its provisions are

inconsistent with an earlier will or codicil. In such cases, the earlier

will or codicil is impliedly revoked by the later will or codicil, in so

far as the latter contains provisions inconsistent with the former. An

earlier will can be totally or partially revoked by implication. If the

provisions of the later will are wholly inconsistent or repetitive, i.e.

it deals with all the areas or matters dealt with in the earlier will, the

earlier will is completely revoked, and only the later will will be

admitted to probate. If on the other hand, some, but not all the

provisions of the later will, are inconsistent with an earlier will, both

or all of the testamentary documents will be admitted to probate, as

together constituting the last will of the testator.8 As was observed

in Townsend v. Moore,9a person can die with only one will and in

cases where there is partial revocation of an earlier will, all the