Revoking a will by destruction

A nod is as good as a wink

In its Judgment handed down on 15 November 2024, the High Court held in Crew v Oakley¹ that a nod was enough to revoke a Will after partially destroying it.

The dispute concerned 92-year-old Carry Keats' sixth and final Will. 

Carry had a fraught relationship with her younger sister, Josephine.  The pair argued for several years over land inherited from their father.  The court heard evidence that Josephine bullied Carry for money (which she never repaid), and that Carry was 'disgusted' by Josephine after she had a marital affair - allegations that Josephine denied.  A consequence of this fallout was that Carry prepared a Will in 2016 leaving her residuary estate to her cousins, Angela and David.  Carry also took out an LPA, appointing her cousins as her attorneys. 

She then fell out with her cousins after they allegedly threatened to put her in a nursing home if she had another fall. Carry was determined to die in her own home. 

Carry went into hospital during COVID.  Her solicitor visited her in January 2022 wearing protective clothing. Carry said she wanted to revoke her Will and tried to tear it in half, nearly finishing  but not completely.  The solicitor asked if she needed help; she nodded.  The solicitor then tore the rest of the Will.  The solicitor then started to take instructions for a new will. 

However, as their conversation progressed, Carry's capacity deteriorated to the point the solicitor felt she could no longer provide instructions for a new Will.  The solicitor explained that this left Carry intestate and that her sister would inherit her estate.  Carry seemed to accept this outcome.

Two weeks later, Carry died.  Her cousins issued proceedings, claiming she had failed to revoke the Will.  Josephine contested the claim.  A jointly appointed medical expert concluded that Carry likely suffered from fluctuating delirium at the relevant time and therefore lacked the testamentary capacity to revoke the Will.  

The court had to decide two key issues: 

1. Whether the incomplete tear and subsequent nod to the solicitor were sufficient to revoke the Will; and
2. Whether Carry had the capacity to revoke the Will.

To revoke a Will by destruction, the testator must destroy (eg tear, burn or shred) the document with the intention of revoking it².  They must also have the necessary capacity.

The relevant test for capacity to make a Will, set out in Banks v Goodfellow, also applies to revoking a Will.  The testator (or here the person revoking the will) must be able to:

1. understand the nature of the act and its effect;
2. understand the extent of their property; and
3. be aware of those who might have a claim to their property,

They must also not be suffering from any delusion that would affect their decision-making.  

Deputy Master Linwood held that:     

1. The destruction of the Will satisfied the statutory requirements.  Carry attempted to tear her Will, intending to destroy it.  Unable to complete the tear, she nodded when the solicitor offered assistance.  This nod constituted sufficient authorisation for the solicitor to destroy the Will; verbal confirmation was unnecessary (even if she was capable of speech).
2. Carry had the capacity to revoke the Will at the relevant time.  She understood the solicitor was there to prepare a new will, had previous experience with will-making, and possessed a strong desire to disinherit the claimants.  The solicitor (an experienced practitioner) was familiar with capacity issues and deathbed wills, had a longstanding relationship with Carry, understood the family dynamics, and her tendency to favour those 'in favour' at the time. The solicitor gave convincing evidence that Carry was able to understand the value of her assets, considered potential beneficiaries, and understood that her sister would inherit her entire estate should she die intestate.  

The case highlights the importance of capacity assessments, solicitor involvement, and thorough record-keeping when preparing or revoking a will.

The case also demonstrates that expert reports are not beyond challenge.  Here, the court preferred detailed solicitor notes over retrospective expert evidence.  In Will proceedings, it is therefore crucial to obtain a detailed written statement from the solicitor who prepared (or destroyed) the Will, as well as their complete file.  

After dismissing the claim, Deputy Master Linwood also took the opportunity to criticise the 'unseemly scrabble for Carry's assets before and after her death'.   Quoting an 1821 decision, Deputy Master Linwood concluded:

It is one of the painful consequences of extreme old age that it ceases to excite interest and is apt to be left solitary and neglected.  The control which the law gives to a man to dispose of his property is one of the most  efficient means which he has in protracted life to command the attentions due to his infirmities.³

Nothing in human nature has changed over the last 200 years since that was said nor I presume will it in the future.  So these disputes will continue unless resolved by negotiation, which I can only urge future parties to engage in realistically and effectively.

His comments are a stark reminder of the risks of taking such cases to trial and the importance of alternative-dispute resolution (including mediation).