How to destroy your Will

We’ve all seen in films and TV programmes when someone threatens to remove a family member from their Will and angrily rips it up after a disagreement.

While ripping up a Will might physically destroy a Will, it doesn’t necessarily revoke it. Our Will writing solicitors explain more in this blog.

Does ripping up a Will revoke it?

The short answer to this is no; ripping up a Will does not necessarily or automatically revoke it.

In England and Wales, the law considers the Testator’s (the person writing the Will) capacity and intentions when revoking their Will.

What to consider when revoking a Will

Capacity to revoke a Will

You can cancel your Will at any time, provided you have mental capacity. Testamentary capacity is determined by the following considerations:

• You must understand what a Will is and what it does.
• You must broadly understand the extent of your assets.
• You must recognise that you have greater moral obligations towards certain family members than others to leave them something in your Will. You must be able to identify who these people are.
• Your understanding must not be impaired by a delusion or a disorder of the mind that affects your Will instructions.

If you satisfy these requirements, you are legally able to cancel your Will.

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Case study: what happens when the Testator doesn’t have capacity?

In the case of Crew v Oakley, the court found that, after a falling out in the family, the Testator had torn up her existing Will with the assistance of her solicitor. The estranged family challenged the revocation, arguing that the Testator did not have the capacity to revoke her Will.

Having reviewed the evidence, particularly the solicitor’s detailed notes, the court was satisfied that the Testator had revoked her existing Will. The ruling meant that the estranged family members would not inherit. The estate passed to the Testator’s sister instead under the intestacy rules.

This case emphasises the importance of seeking legal advice when destroying your Will.

Intention to destroy a Will

The person destroying the Will must have the intention of revoking it. In the case of Gill v Gill [1909], during an argument, the wife tore up the husband’s Will. The court held that the husband did not have the intention to cancel his Will.

If you wish to revoke your Will, it is wise to get advice from a solicitor who can help ensure there is a clear record of your intentions.

How to destroy a Will

If you intend to cancel your existing Will, it is important to understand the full ramifications of doing so.

You may think that you can destroy a Will by tearing it up or putting it through a shredder, but a solicitor or the court would place heavy consideration on your intentions in doing this.

If you want to revoke your Will, it is best to speak to a specialist. A solicitor can advise you on revoking your Will, preparing a new Will or updating an existing one. They can help to ensure that there is a clear record of your capacity, intentions and physical destruction of any existing documents.

Make a new Will

Often, people want to revoke a Will because their circumstances or intentions have changed. The best way of reflecting your new intentions is by writing a new Will that cancels your old one.

When you write a new Will, it will contain a ‘Revocation Clause’, which states that this Will cancels out any previous versions. This makes your intentions clear and avoids potential confusion if you’ve previously made one or more Wills.

The most important thing to remember is that, if there is no Revocation Clause, the old Will is still legally valid. This could make things extremely stressful, complicated and even awkward for friends and family, not to mention a bit of a headache for the lawyer managing the estate administration.

If you hold assets abroad, you should seek legal advice to ensure that your UK Will does not inadvertently revoke your Will abroad, or vice versa.

Does marriage revoke a Will?

Yes, marriage and civil partnership automatically revoke a Will. If you do not write a new Will after you get married or enter a civil partnership, and you die, the rules of intestacy will apply to how your estate is administered. Read more about the rules of intestacy in this blog.

On the flip side, divorce does not revoke a Will like marriage does. If you pass away after a divorce or civil partnership dissolution and you haven’t updated your Will to reflect that change, the law assumes you no longer wish to give your former spouse or civil partner what you set out in your Will.

If you have other Beneficiaries within your Will, depending on the terms of your Will, they may end up getting more than you intended in the absence of your ex-partner, and this isn’t always a good thing! Sometimes, part of your estate may be distributed per the intestacy rules, despite having a Will, in the absence of your former partner. This is why it is important to update your Will after any significant life change, such as a divorce or separation.

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Can I cancel a Will without having a new one in place?

Strictly speaking, there is nothing to stop you from revoking a Will without having a new one in place. However, if you die before you write a new Will, you will die intestate, so it is worth thinking about the consequences of avoiding writing a new Will before you take this risk.

Want to revoke or write a new Will? Get in touch

If your Will no longer reflects your wishes and/or circumstances, our Will writing solicitors can advise you on what to do next.

To book an appointment with our Will Writers in Bristol, call 0117 325 2929 or fill out our online enquiry form. You can also get an estimate for a new Will here.