High Court Deathbed Destruction Dispute: Is partially ripping a Will sufficient to revoke it?
This week a recent High Court decision has become a significant milestone in estate law. The claim concerned whether the Deceased had sufficient mental capacity to make a deathbed revocation of her Will, and whether the act of tearing it through was sufficient to amount to revocation under Section 20 of the Wills Act 1837. If the Court found that she did have capacity and the act was sufficient to revoke her Will, then her estate would pass to her sister Josephine under the rules of intestacy. On the other hand, if the Court found that she lacked capacity or that the act of tearing it was not sufficient to revoke the Will, then her Will would stand and her estate would pass to her cousins.
Background of the Case
Carry Keats, aged 92 at the time of her death, had an estate worth approximately £800,000, primarily comprising her home and land in Wiltshire. In 2020, she had executed a will leaving the majority of her estate to her five distant cousins, Angela and David. However, following disputes about her care—particularly their suggestion to move her into a care home—Carry decided to change her Will.
In January 2022, while hospitalized in Salisbury, she arranged for her solicitor. Haffwen Webb, to visit her to take instructions for a new Will. Webb had no doubts about Carry’s mental capacity at that meeting, although some hospital staff had described her as ‘confused’ at times. During the meeting, Webb had thoroughly explained to Carry that if she did not want the cousins to benefit from her Will, by ripping it she would be revoking it and that she would be intestate. This would mean that her estate would pass to her sister Josephine.
With her solicitor present, Carry tore the will in an effort to render it void. Although she could not fully destroy the document due to physical frailty, she indicated her intent for Webb to complete the act on her behalf. Webb put her hands on the Will with Carry’s and tore it together.
Carry died on 15 February 2022, without executing a new draft Will.
Carry’s younger sister, Josephine Oakley, argued that Carry had intended to disinherit her cousins, and that the revocation was valid. In contrast, the cousins contended that Carry lacked the mental and physical capacity to revoke the will, rendering the partial destruction insufficient.
The Court’s Ruling
Deputy Master John Linwood of the High Court ruled in favour of Josephine Oakley, upholding the validity of the will’s revocation. The court’s decision hinged on two critical elements: testamentary capacity and the adequacy of the revocation process.
Testamentary Capacity
The court found that Carry had the necessary mental capacity to revoke her will. Despite her age and frailty, the evidence demonstrated that she was in a “lucid interval” when she tore the document. Ultimately, the Court found that Webb’s attendance note was convincing enough to meet the Banks v Goodfellow test, namely that there was sufficient intent on Carry’s part to destroy the Will and because Webb had advised her of the consequences that would flow from the destruction of the Will.
Revocation Process
The court ruled that Carry’s act of tearing the will, combined with her expressed intention for it to be destroyed, met the legal requirements under the Wills Act 1837. Although the will was only partially torn by Carry herself, Webb’s completion of the act under her clear instruction was deemed sufficient as Carry had properly authorised her to complete the destruction of the will by a nod of the head. The Court noted that this was not ‘mere acquiescence but a positive and discernible non-verbal communication’.
This case underscores several important legal principles and practical lessons for estate planning. Carry’s case illustrates just how important testamentary capacity is for revocation and it is not as simple as just destroying it. The combination of Carry’s physical actions and her instructions to the solicitor satisfied this requirement.
Lastly, the presence of detailed contemporaneous attendance notes taken by Webb played a key role in this case, providing vital evidence to support Carry’s intentions and capacity. This highlights the importance of seeking professional advice when making changes to a will.
The Judgment can be found here.
Contact our Litigation and Dispute Resolution experts
Nadine Esaid is a Solicitor in the Bishop & Sewell Litigation and Dispute Resolution team. If you would like to contact a member of the team please call on 020 7631 4141 or email nesaid@bishopandsewell.co.uk.
The above is accurate as at 21 November 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
