Wills once made are liable to change by their maker either through alteration, revocation or revival in cases where there has been revocation.
This is an expression of the freedom of testation. A will can be revoked voluntarily or involuntarily. There are three (3) methods of voluntary revocation, namely: express revocation, implied revocation and revocation by destruction. These three methods require mental capacity to the same degree as for the creator of a will and the intention to revoke. Under Kenyan law, there is only one involuntary method of revocation, revocation by marriage. This arises by operation of the law and it therefore does not require that the testator had mental capacity or intention to revoke. S 17 of the LSA provides that its maker may revoke a will at any time when he is competent to dispose of his free property by will.
S 18 (1) provides for the revocation of a will or codicil by another will or codicil declaring an intention to revoke it. Read together with S 17 this provision enables testators to revoke their wills so long as they have the capacity to do so. Professionally drawn wills invariably contain an express revocation clause taking this form: “I revoke all former wills and testamentary dispositions heretofore made by me”. It was held in Re Hawksley’s Settlement (1934) Ch. 384 that the description of the will as the testator’s ‘last will’ was not sufficient for an express revocation clause. The words ‘I revoke’ must be embodied in the revocation clause.
Revocation may be of whole or part of the will or codicil. A codicil is often used when only parts of the will are to be revoked. Express revocation requires an intention to revoke on the part of the testator.
The wording of S 18 (2) is wide enough to cover the possibility of implied revocation. A will or codicil is impliedly revoked by a later will or codicil to the extent that the latter is inconsistent with the earlier will or codicil. It is a matter of construction of the will or codicil to decide whether and to what extent a later will impliedly revokes an earlier will. Extrinsic evidence is admissible for establishing implied revocation.
Revocation by Destruction
S 18(1) provides for revocation by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator or by some one else at his direction. Revocation by destruction involves two distinct elements:- the actual destruction of the will and an intention to revoke the will. Both elements must be present. The actual destruction must be by burning, tearing or otherwise destroying the will. ‘Otherwise destroying’ has been construed using the ejusdem generis rule to require that the acts of destruction are of the same kind as burning and tearing.
In Cheese vs. Lovejoy (1877) 2 PD 251 A testator cancelled his will by striking out its clauses and his signature with a pen and then writing at the back of the will ‘All these are revoked’. He threw the will in a pile of waste paper in the corner of the room where his house cleaner retrieved it and kept it in a kitchen drawer until the testator’s death eight years later. It was held that what he did had not amounted to “otherwise destroying”. Although he intended to revoke the will, it had not been destroyed and it was admitted to probate. In Re: Morton’s Goods (1887) 12 PD 14 the testator’s signature was completely scratched out. It held that the same amounted to otherwise destroying. In Re Adams (1990) 134 Sol. Jol. 518 parts of a will were heavily scored through with a ballpoint pen. The relevant parts were held to have been actually destroyed.
Whether actual destruction of part of a will results in the revocation of a whole or part of the will depends on the part actually destroyed. If the destroyed part impinges on the whole will, the whole will will be revoked, for example the destruction of the part of the will containing the signature. If the parts are less important, only those parts will be revoked. In Re: Everest (1975) Fam 44 the testator cut off the part of his will that contained the trusts of the residue. It was held that the parts cut off were revoked but that the rest of the will remained intact.
To establish actual destruction it must be proved that the acts of destruction were completed by the testator. The acts of destruction must be by the testator or by some other person in the testator’s presence and under his direction. In Re: Dadd’s Goods (1857) Dea & Sw. 290 a testator on her deathbed expressed a wish to revoke a codicil. Her executor and a neighbour went out of her presence into the kitchen and burnt the codicil. It was held that there was no actual destruction.
In Gill vs. Gill (1909) the testator’s wife tore up his will in a fit of temper and it was held that there was no actual destruction as the will was not destroyed under direction.
Where instructions are given to an advocate by a client asking the advocate to destroy the client’s will in his possession and then the advocate destroys the same in the absence of the client the act of destruction in such a case does not amount to the actual destruction of the will and there would be no revocation of the subject will.
If, however, the letter or document containing the instructions to destroy is signed by the testator and attested by two witnesses the destruction would effectively revoke the will. In Re: Durance (1872) LR 2 P & D 406 a testator wrote to his brother who had custody of his will asking him to destroy it. The letter was signed and witnessed by two persons. It was held that there was actual destruction and that the will had been revoked.
With respect to intention to revoke, the testator must have the same capacity to revoke as is necessary to execute a valid will. In Re Aynsley (1973) 1 Ch. 172 a testatrix who was old and confused tore her will into forty pieces. The judge put the pieces together in a one-hour operation. It was held that the testatrix lacked mental capacity to revoke and the will was therefore still valid.
The destruction must not be accidental. If a testator is under some mistaken belief, for example that the will is invalid, a destruction of the will in the circumstances would not lead to revocation, as there would be no intention to revoke. Sometimes, a will may be lost or found torn or mutilated after the testator’s death. In such cases, the will is presumed to have been destroyed by the testator with the intention of revoking it where the will was last known to be in his possession. The presumption concerning revocation by destruction is rebuttable.
Sometimes revocation is conditional under the Doctrine of Conditional Revocation. Once an intention to revoke is established, it is necessary to decide whether the intention is absolute or conditional. It is a question of fact in the case of actual destruction but a matter of construction in the case of express revocation. Doctrine is also known as dependent relative revocation. If the intention is absolute, the revocation does not have effect until the condition is fulfilled.
This effectively means that where a testator revokes his will with the intention of making a new one and for some reason fails to make a new one, the original remains valid. The doctrine only applies where the court is satisfied that the testator did not intend to revoke the will absolutely, but merely revoked it as a first step towards making a new will. If the intention is absolute, the revocation takes effect immediately. If it is conditional, the revocation does not effect until the condition is fulfilled.
In Dixon vs. Treasury Solicitor (1905) P 42 (CA) a testator instructed a solicitor to draw up a will for him. Before this had been done he cut off the signature from his old will as he mistakenly believed that the new will could not be made until the old will was revoked. The action of cutting off the signature amounted to revocation by destruction. The testator died before he could sign the new will. It was held that because of his mistaken belief the revocation of the old will was conditional on the new will being effective. The old will was admitted to probate.
Involuntary Revocation – Revocation by Marriage
Generally, the marriage of the testator automatically revokes any will or codicil made prior to the marriage. Section 19 of the LSA provides that the marriage of the testator will automatically revoke a will subject to one exception, where the will is expressed to be made in contemplation of marriage with a specified person. The rationale behind it is that in marriage and birth of children are issues to the testator that constitute an important change of circumstances and it is considered equitable in the circumstance for the person’s estate to pass on intestacy rather than under a will made before the marriage or birth of the children. The law should therefore take care if the circumstances have changed.
Under normal circumstances, the spouse and the child of the deceased not provided for in the will may move the court under S 26 to ensure they are catered for. This rule is intended to reduce unnecessary litigation.
Kenyan law does not recognize revocation by divorce, indeed the definition of ‘dependant’ in S 29 includes former wife or wives of the deceased. In Re Bird Deceased (1970) EA 289, Platt J stated that divorce does not ipso facto revoke a will. The court found that the divorced woman was the person named in the will as the person entitled to the property of the testator.
Revocation of Written Will by Oral Will
Under section 18(2) an oral will cannot be used to revoke a written will.
Revival of Wills
A testator may revive a will, codicil or any one of them that has been revoked, provided that it has not been completely destroyed. Revival usually involves the re-execution of the will with proper formalities or a duly executed codicil. There should be in either case an intention to revive the revoked document.
Under S 20 it is permissible to make alterations to a will, both before and after execution. Alterations made after execution would be invalid unless they are duly executed in accordance with the formalities required for the execution of a valid will. The formalities are deemed to be duly complied with if the testator and witnesses sign on the margin next to the alteration or in the memorandum referring to the alteration.