Revocation of wills - Revocation by destruction

Learning Outcomes

This article outlines revocation by destruction under s20 Wills Act 1837 and related principles for SQE1 FLK2, including:

• The statutory elements of a valid revocation by destruction, requiring both a qualifying physical act and a concurrent intention to revoke
• How to distinguish absolute revocation from conditional revocation, and when the doctrine of dependent relative revocation may rescue an earlier will
• The requirement for testamentary capacity at the time of destruction and the interaction between capacity, intention, and evidential proof
• The relationship between s20 and s21, explaining why mere crossing‑out, annotations, or writing “cancelled” will rarely amount to effective revocation
• What amounts to “destruction” in practice, including burning, tearing, shredding, and effective obliteration of signatures or essential dispositive provisions
• Evidential issues when a will is missing, mutilated, or destroyed by someone other than the testator, and how courts treat copies
• The effect of partial destruction on the validity of the whole instrument, the risk of partial intestacy, and reconstruction of contents
• The presumption of revocation where a will last in the testator’s possession cannot be found, and the main routes to rebutting it
• Key statutory provisions and leading authorities frequently tested in SQE1-style multiple-choice questions and problem scenarios

SQE1 Syllabus

For SQE1, you are required to understand the rules and practical implications of revocation of wills, including revocation by destruction, with a focus on the following syllabus points:

• the statutory requirements for revocation by destruction under the Wills Act 1837
• the need for both a physical act and intent to revoke
• the importance of testamentary capacity at the time of revocation
• the legal consequences of partial destruction, conditional revocation, and missing wills
• how courts treat evidence and presumptions relating to revocation by destruction
• who may carry out the act of destruction and the requirement of presence and direction
• interaction with alteration rules where obliterations are attempted post-execution
• the practical treatment of copies and reconstruction when an original has been destroyed or lost

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What two elements must be present for a will to be validly revoked by destruction?
2. If a will is last known to be in the testator’s possession but cannot be found after death, what is the legal presumption?
3. Can a will be revoked by destruction if the testator lacks testamentary capacity at the time of destruction?
4. What is the effect if only part of a will is destroyed, such as the signature or a key dispositive clause?

Introduction

Revocation by destruction is one of the main ways a valid will can be revoked in England and Wales. For SQE1, you must know the statutory requirements, the need for both a physical act and intent, and the consequences of partial or conditional revocation. This article explains the law, key terms, and common pitfalls. It also clarifies how courts distinguish true revocation by destruction from ineffective symbolic acts or attempted alterations, and how evidential presumptions apply where an original will goes missing or is found mutilated.

Statutory Requirements for Revocation by Destruction

A will can be revoked by destruction under section 20 of the Wills Act 1837. The law requires two elements:

• a physical act of destruction (such as burning, tearing, or otherwise destroying the will)
• a concurrent intention to revoke the will at the time of the act

Both elements must be present. Destruction alone, or intent alone, is not sufficient.

Revocation by destruction must be carried out by the testator personally or by another person acting in the testator’s presence and by their direction. If destruction occurs in the absence of the testator, or without their authority, revocation does not take effect.

Key Term: revocation by destruction
The process by which a will is cancelled through a deliberate physical act (burning, tearing, or otherwise destroying) performed by the testator (or by someone else in their presence and at their direction), with the intention to revoke the will.

The Physical Act

The act of destruction must be significant. Minor defacement or crossing out is not enough unless it renders the will, or a material part of it, inoperative. Acceptable acts include burning, tearing, shredding, or otherwise making the will unusable. The phrase “otherwise destroying” covers any act that physically obliterates the document or a material part of it so that the will cannot operate.

Physical acts that have been treated as sufficient include:

• complete burning or tearing of the will so it cannot be pieced together to function
• heavy scoring-through or obliteration of essential provisions in a way that amounts to destruction of those parts (for example, rendering a dispositive clause illegible and inoperative)
• removal of the testator’s signature or the attestation clause where the intent was to revoke the will and the effect undermines the validity of the instrument

By contrast, mere symbolic acts such as writing “cancelled” on the document, crossing out words without truly obliterating them, or tossing the will into a bin without actual destruction, do not satisfy the statutory requirement.

Where part of a will is destroyed, the legal effect depends on whether the destroyed part is sufficiently substantial or essential to the operation of the will. Destruction of a material part (such as the testator’s signature) may amount to revocation of the entire will if done with the requisite intent. If a less substantial part is destroyed, the remainder may still be admitted to probate if it is intelligible and can operate on its own.

Key Term: physical act of destruction
A deliberate action by the testator (or by another in their presence and at their direction) that materially damages or destroys the will document.

The Intention to Revoke

The testator must intend to revoke the will at the time of destruction. Accidental destruction, or destruction without intent to revoke, does not revoke the will. Intention must coincide with the physical act; later statements of intent are not enough if the destruction itself was not accompanied by an intent to revoke.

Intention is assessed objectively from the surrounding circumstances and the testator’s words and actions. Revocation will not be effective where the testator destroys a will:

• by mistake (for example, believing the will already has no effect so that they are not intending to change its current legal status)
• while intoxicated or otherwise lacking the ability to form the intent required to revoke
• in a moment of passion without a considered decision to revoke

Key Term: intention to revoke
The clear, conscious decision by the testator to cancel the will, which must exist at the moment the will is physically destroyed.

Testamentary Capacity

The testator must have testamentary capacity at the time of revocation. The capacity required is the same as the capacity to make a will: understanding the nature and effect of the act of revocation, the extent of their property, and the claims of potential beneficiaries, free from any disorder of the mind that perverts their sense of right.

If the testator lacks capacity (for example, due to mental illness or intoxication), the revocation will be invalid. Where capacity is borderline, contemporaneous evidence (medical notes, witness accounts) will be critical.

Key Term: testamentary capacity
The legal ability to make or revoke a will, requiring understanding of the act, the extent of property, and the claims of potential beneficiaries.

Who Can Destroy the Will?

Destruction must be carried out by the testator or by someone else in the testator’s presence and at their direction. “Direction” requires a positive communication or instruction; mere acquiescence or passive approval is not enough. If someone destroys the will without the testator’s authority, the will is not revoked.

No witness to the destruction is legally required. However, the lack of a witness may create evidential difficulties. If a will is found torn or mutilated and there is evidence that the will was kept by the testator up to death, a presumption arises that the testator destroyed it with intent to revoke. This is a rebuttable presumption; strong evidence that someone else intervened, or that the damage was accidental, can displace it.

Partial Destruction

If only part of the will is destroyed, the effect depends on what was destroyed and the testator’s intention. Destroying a material part, such as the signature or a dispositive clause, may revoke the whole will if that was the testator’s intention and the interference is sufficiently substantial. If the will remains operative and makes sense, the remaining parts may still be valid. The court asks whether the remainder is intelligible and can operate without the destroyed portion.

Partial destruction is distinct from alteration. Under s21 Wills Act 1837, obliterations or interlineations made after execution are ineffective unless re-executed in compliance with s9. If the obliteration fails (for example, the original words remain apparent), the original wording is admitted to probate and the attempted change is ignored. Only where the obliteration was intended to revoke and successfully makes the original wording non-apparent may the obliterated words be treated as revoked. These rules sit alongside s20: ineffective post-execution obliterations do not amount to revocation by destruction unless they truly destroy the part and were done with the requisite intent.

Worked Example 1.1

A testator tears their will in half in front of a witness, saying, "I don't want this will anymore." The signature and main clauses are destroyed. Is the will revoked?

Answer:
Yes. The testator performed a physical act of destruction with clear intent to revoke. The destruction of the signature and main clauses is sufficient to revoke the will.

Worked Example 1.2

A will was kept in the testator’s desk. After the testator’s death, the will cannot be found. What is the legal position?

Answer:
The law presumes the testator destroyed the will with intent to revoke. However, this can be rebutted if there is evidence the will was lost or destroyed accidentally, or that the will was stored with a third party (e.g., a solicitor), meaning the presumption does not arise.

Worked Example 1.3

A testator destroys their old will after signing a new will. The new will is later found to be invalid due to lack of witnesses. What is the effect?

Answer:
The court may treat the destruction of the old will as conditional on the new will being valid (dependent relative revocation). If the new will is invalid, the old will may be admitted to probate, provided its contents can be proved and it was otherwise valid.

Worked Example 1.4

A testatrix cuts out a section creating a trust of residue, leaving the rest of the will intact. The remaining gifts are readable and executable. What is the outcome?

Answer:
The partial destruction of the trust clause does not revoke the entire will if the remainder can operate and the testatrix intended only partial revocation. The specific gifts stand, but the residuary estate is left undisposed and will pass on intestacy (partial intestacy).

Worked Example 1.5

A family member, without the testator’s knowledge, shreds the will to prevent another beneficiary from inheriting. A signed copy exists at the solicitor’s office. Does revocation by destruction apply?

Answer:
No. Destruction not carried out by the testator or by someone in their presence and at their direction is ineffective to revoke. If the original cannot be recovered, the copy or reconstruction may be admitted to probate if the contents and due execution can be proved.

Worked Example 1.6

The testator told friends they intended to revoke their will but accidentally left it near a heater which caused minor scorching of the edges; the document remains legible. Is the will revoked?

Answer:
No. There is no intentional destruction coinciding with the act. Minor accidental damage that leaves the will legible does not amount to revocation by destruction.

Presumption of Revocation

If a will was last known to be in the testator’s possession and cannot be found after their death, the law presumes the testator destroyed it with the intention to revoke. This presumption can be rebutted by evidence:

• the will was stored with a solicitor, bank, or trusted third party, so it was not in the testator’s possession
• accidental destruction (e.g., house fire) without an intent to revoke
• interference or destruction by someone else without the testator’s authority
• continued statements by the testator close to death affirming the will, inconsistent with an intention to revoke

If the presumption stands and there is no copy, probate of that instrument will be refused. If the presumption is displaced and the contents can be proved (e.g., a solicitor’s copy or draft and reliable testimony), the court may admit the copy or a reconstruction to probate.

Key Term: presumption of revocation
The legal assumption that a missing will, last known to be in the testator’s possession, was destroyed by the testator with intent to revoke.

Conditional Revocation (Dependent Relative Revocation)

Sometimes, a testator destroys a will intending to replace it with a new one. If the new will is invalid, the court may treat the destruction of the old will as conditional on the new will being valid. If the condition fails, the old will may be revived in the sense that it is admitted to probate (strictly, the revocation is disregarded). Extrinsic evidence is admissible to establish the conditional nature of the revocation. The doctrine can also operate where a later will contains an express revocation clause that is construed as conditional upon the effectiveness of the later dispositions.

Key Term: conditional revocation (dependent relative revocation)
A revocation that is only effective if a specific condition is met (e.g., a new will is valid). If the condition fails, the revocation may be disregarded.

The doctrine is fact-sensitive. Courts look at whether the testator’s intention was: (a) to exclude the previous beneficiaries absolutely, or (b) to prefer the new beneficiary, but if that failed, to avoid intestacy by allowing the previous will to stand. Evidence of the testator’s expressed preferences and the timing of destruction relative to an anticipated new will are relevant.

Case Law Highlights

• Cheese v Lovejoy (1877): Writing “cancelled” on a will and crossing out parts was not enough—no sufficient physical destruction occurred. The court emphasised the twin requirement of destruction plus intent.
• In the Estate of Adams (1990): Extensive scoring-through amounting to obliteration of parts was treated as destruction of those parts. If essential parts are destroyed with intent, revocation may be effective.
• Doe d. Perkes v Perkes (1820): Tearing a will into pieces but stopping before completion may be insufficient where the act and intention to revoke are not fully carried through.
• Re Finnemore (1991): Where later instruments with revocation clauses were ineffective in part (e.g., because of witness/beneficiary issues), the revocation clauses were treated as conditional, preserving earlier gifts.
• Authorities also recognise a rebuttable presumption of revocation where a will last held by the testator cannot be found after death; reliable proof can displace the presumption and allow a copy or reconstruction to be admitted.

Exam Warning

For SQE1, remember that both a physical act and intent to revoke must be present at the same time. Accidental destruction, or destruction without intent, does not revoke a will. Capacity is also essential. Destruction must be by the testator or by another acting in the testator’s presence and at their direction; destruction carried out elsewhere or without authority is ineffective. Distinguish carefully between revocation by destruction (s20) and attempted alterations (s21): ineffective obliterations are not destruction and do not revoke a will unless they truly obliterate essential parts with the requisite intent.

International and Cross-Border Issues

If the testator owns property in other jurisdictions, local law may affect whether revocation by destruction is recognised. For immovable property (real estate) abroad, the law of the property’s location (lex situs) may govern succession formalities and the recognition of revocation methods. A revocation by destruction valid in England and Wales may not be recognised for foreign real estate if the local law requires different formalities. For movable property, choice-of-law rules may differ. Where cross-border assets are involved, consider executing clear replacement instruments compliant with the relevant jurisdictions to avoid reliance on evidential presumptions.

Key Point Checklist

This article has covered the following key knowledge points:

• Revocation by destruction requires both a physical act and intent to revoke.
• The act must be performed by the testator or by another in their presence and at their direction.
• Testamentary capacity is required at the time of revocation.
• The physical act must be significant: burning, tearing, shredding, or effective obliteration of essential parts; symbolic acts alone are insufficient.
• Partial destruction may revoke the whole will if material parts are destroyed and that was the testator’s intention; otherwise the remainder may stand and partial intestacy may result.
• If a will cannot be found after death and was last known to be in the testator’s possession, there is a rebuttable presumption of revocation.
• The presumption is displaced where the will was stored with a third party, where accidental loss is shown, or where interference by another is proven.
• Conditional revocation may apply if the testator intended the revocation to depend on a new will being valid; if the condition fails, the prior will may be admitted to probate.
• Accidental destruction or destruction without intent does not revoke a will.
• Attempted obliterations after execution fall under s21: unless re-executed with formalities, ineffective obliterations do not revoke and the original wording is admitted if apparent.
• Where an original has been destroyed without valid revocation, a copy or reconstruction may be admitted if its contents and due execution are proved.

Key Terms and Concepts

• revocation by destruction
• physical act of destruction
• intention to revoke
• testamentary capacity
• presumption of revocation
• conditional revocation (dependent relative revocation)