Revocation of wills - Revocation by later will or codicil

Learning Outcomes

After reading this article, you will be able to explain how a will may be revoked by a later will or codicil, distinguish between express and implied revocation, and identify the requirements for a valid revocation. You will also understand the effect of codicils and how partial revocation can arise. This knowledge will enable you to answer SQE1 questions on the revocation of wills with confidence.

SQE1 Syllabus

For SQE1, you are required to understand the legal rules and practical implications of revocation of wills by later wills or codicils. In your revision, focus on:

• the statutory requirements for revocation by later will or codicil
• the difference between express and implied revocation
• the effect of codicils on previous wills
• how partial revocation can occur
• the importance of proper execution and testator capacity for revocation

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 is required for a later will to validly revoke an earlier will?
2. Can a codicil revoke only part of a previous will? If so, how?
3. If a new will does not contain a revocation clause but disposes of the entire estate, what is the effect on any earlier will?
4. True or false: A later will always revokes all previous wills, even if it is not properly executed.

Introduction

Revocation of a will is the legal process by which a testator cancels or withdraws a previous will. For SQE1, you must understand how a later will or codicil can revoke an earlier will, either expressly or by implication, and the requirements for such revocation to be effective. This article explains the key principles, statutory rules, and practical consequences of revocation by later will or codicil.

Revocation by Later Will or Codicil: The Statutory Framework

A will can be revoked in several ways, but the most common is by making a new will or codicil. The Wills Act 1837 sets out the requirements for valid revocation by a subsequent testamentary document.

Key Term: revocation
The legal act of cancelling or withdrawing a will or part of a will, so that it no longer has legal effect.

Express Revocation

A later will or codicil may contain an explicit statement revoking all previous wills and codicils. This is known as express revocation.

Key Term: express revocation
A clear, written statement in a will or codicil declaring that previous wills and codicils are revoked.

Requirements for Express Revocation

For an express revocation to be valid:

• The later will or codicil must be executed in accordance with the formalities required by law (Wills Act 1837, s.9).
• The revocation clause must clearly state the intention to revoke previous wills (e.g., "I revoke all former wills and testamentary dispositions made by me").
• The testator must have testamentary capacity and intention to revoke.

Implied Revocation

A later will or codicil may revoke an earlier will by implication, even if it does not contain an express revocation clause. This is known as implied revocation.

Key Term: implied revocation
Revocation that arises when a later will or codicil is inconsistent with an earlier will, so that the provisions cannot stand together.

How Implied Revocation Occurs

Implied revocation typically happens when:

• The later will disposes of the entire estate, leaving nothing for the earlier will to operate on.
• The later will contains provisions that contradict or are inconsistent with the earlier will.

If the later will is wholly inconsistent with the earlier will, the earlier will is revoked in its entirety. If only some provisions are inconsistent, only those parts are revoked (partial implied revocation).

Revocation by Codicil

A codicil is a document that amends, adds to, or revokes part of a will without replacing the entire will.

Key Term: codicil
A testamentary document executed with the same formalities as a will, used to alter, add to, or revoke part of an existing will.

A codicil can:

• Expressly revoke all or part of a previous will.
• Impliedly revoke provisions of a will by making inconsistent changes.
• Confirm the rest of the will, so that unchanged provisions remain valid.

Requirements for a Valid Revocation

For any revocation by later will or codicil to be effective:

• The later document must be in writing, signed by the testator, and witnessed by two witnesses present at the same time (Wills Act 1837, s.9).
• The testator must have the mental capacity and intention to revoke.
• The revocation must not be conditional unless the condition is satisfied.

Key Term: partial revocation
The cancellation of only part of a will, so that the remaining provisions continue to have effect.

Worked Example 1.1

A testator makes a will in 2015 leaving all assets to a friend. In 2021, the testator makes a new will that leaves the house to a niece and the residue to charity, but does not mention the earlier will or include a revocation clause. What is the effect?

Answer: The 2021 will impliedly revokes the 2015 will to the extent that its provisions are inconsistent. The gift of the house to the friend in the 2015 will is revoked, but any part of the estate not disposed of by the 2021 will could still pass under the 2015 will if there is no complete inconsistency.

Worked Example 1.2

A testator makes a will in 2018 leaving everything to a spouse. In 2022, the testator makes a new will with a revocation clause: "I revoke all former wills and codicils." The 2022 will is properly executed. What is the effect?

Answer: The 2022 will expressly revokes the 2018 will. Only the 2022 will takes effect on the testator's death.

Worked Example 1.3

A testator executes a codicil in 2023 that states: "I revoke clause 4 of my will dated 1 January 2020." The codicil is properly executed. What is the effect?

Answer: The codicil revokes only clause 4 of the 2020 will. The rest of the will remains valid and operative.

Exam Warning

If a later will or codicil is not validly executed, it does not revoke an earlier will. An invalid later will or codicil is ignored, and the earlier will remains effective.

Revision Tip

Always check for a revocation clause in a new will. If absent, consider whether the new will disposes of the entire estate or is inconsistent with the earlier will.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• A will may be revoked by a later will or codicil, either expressly or by implication.
• Express revocation requires a clear revocation clause and proper execution.
• Implied revocation arises where a later will or codicil is inconsistent with an earlier will.
• A codicil can revoke all or part of a will, or confirm the rest.
• Proper execution and testator capacity are essential for a valid revocation.
• If a later will or codicil is invalid, the earlier will remains effective.

Key Terms and Concepts

• revocation
• express revocation
• implied revocation
• codicil
• partial revocation