I. INTRODUCTION

5.1 In Chapter 2 (paras 2.35-2.39) we briefly surveyed the existing law of revocation of wills. It was noted that s17 of the Wills, Probate and Administration Act, 1898 prescribes three ways of revoking a will, namely:

• by another will
• by some writing, duly executed as a will, declaring an intention to revoke the will
• by the burning, tearing or “destruction otherwise” of the will by the testator or by some person in the testator’ s presence and by the testator’s direction with the intention of revoking it.

Except for privileged testators (see Chapter 11), these formalities must be strictly complied with before a will is revoked.¹ Failure to comply means that, under the existing law, the will stands despite evidence that the testator intended to revoke the will or even attempted to do so.

5.2 In our proposal for the introduction of a general dispensing power we provide that such power shall extend to wills and documents intended to operate so as to revoke earlier wills (para 6.31). There are however two areas, peculiar to revocation formalities, which require close attention

• wills containing express revocation clauses which do not truly represent the testator’s intention and
• the scope of the “destruction” category of revocatory action.

II. EXPRESS REVOCATION CLAUSES INSERTED BY MISTAKE

5.3 From time to time testators leave a will containing a general revocation clause in circumstances where there is evidence that it was not intended that the will would revoke all or part of an earlier one. If the revocation clause is inserted by clerical error it may be omitted from probate on the principle that only those parts of the document that the testator knew and approved of are the true will However, what of the testator who is aware of the inclusion of a general revocation clause, but who, through ignorance or bad legal advice, fails to appreciate its effect or operation on prior dispositions intended to be left untouched?

5.4 There are some older cases where the testator’s true intention was defeated by the application of the principles that (i) reading over and due execution were conclusive of knowledge and approval of the text, and (ii) that a testator was bound by the terms of a general revocation clause notwithstanding an error as to its legal or practical effect.² The first principle no longer applies.³ But the second has not been clearly laid to rest and, despite strong judicial and academic criticism in recent years,⁴ it possibly survives.

5.5 The adoption of our more general recommendation about rectification (para 7.25) will ensure that if necessary, the court will be able to reform the terms of revocation clauses so that they operate only so far as the testator truly intended. We say “if necessary” because it is quite conceivable that there will be cases where there will be no need to seek such remedy in relation to mistakenly inserted revocation clauses in view of the judicially-created doctrine of dependent relative revocation in its various manifestations and the body of authority suggesting that the second principle mentioned in the preceding paragraph would not now be applied.

III. REVOCATION BY DESTRUCTION

5.6 The statutory requirements for revocation by destruction have, in some cases clearly thwarted a testator’ s intention to revoke a will. Courts have held symbolic acts of destruction such as

• writing “cancelled” on the will;
• drawing a line through it; or
• crumpling the will and throwing it away.

as insufficient to revoke a properly executed will, even where there is considerable evidence to indicate the testator thought he or she had effectively revoked the document.⁵

5.7 For example, in Cheese v Lovejoy⁶ the testator made a will and three codicils which were found upon his table at his death He had drawn lines through parts of the will and written on the back “All these are revoked”. The testator told his housekeeper that he had cancelled his will and, in her presence, threw it among a heap of waste paper on the floor. The will was held to be unrevoked.

5.8 Those who support retention of the section in its existing form argue that it is desirable to have certainty about what are valid acts of revocation. They argue, and we agree, that the present rules provide some protection against a stranger getting hold of the will and purporting to cancel it without the knowledge or authority of the testator, perhaps even after his or her death.⁷ But it is also important that the law reflect the desire to implement the clear intentions of a testator not only in creation of a will but also in its revocation. We consider that the present law is unsatisfactory. In rejecting the English Law Reform Committee’s conclusion that there should be no change, the Law Reform Commission of British Columbia stated reasons for reform which we adopt:

We do not agree with this conclusion, particularly since it preserves rules which can lead to results as contrary to common sense as those in Cheese v Lovejoy.... We have abandoned the unqualified acceptance of formalities in respect of the formation of wills and it would be inconsistent to ignore probative evidence in respect of their revocation Should the court be compelled to probate a will which, on strong evidence, it is satisfied represented the testator’s intent at the time it was written, but ignore equally strong evidence probative of the testator’s having revoked the will. The undue insistence on formalities respecting the revocation of wills would create the anomalous result that a court, directed to have regard to whether an informal document truly represents the testator’s intent, would be obliged to conclude that it did, even if in fact convinced that the testator intended to revoke it.⁸

We would add that in many cases a malevolent intervener might be more likely to destroy or suppress a will than symbolically revoke it, although if such person were unhappy with only part of a will he or she would be tempted to cross out just that portion.

5.9 The Law Reform Commission of British Columbia recommended⁹ that an additional revocatory act be inserted into the legislation, namely:

any other act of the testator, or of a person by his direction and in his presence, if:

(i) the consequence of the act is apparent on the face of the will; and

(ii) the court is satisfied that the act was done with the intent of the testator to revoke all or part of the will.

We agree with such an approach in principle. But the requirement that “the consequence of the act is apparent on the face of the will” is likely to produce uncertainty and disputes. Would it extend to the act of writing “cancelled” on the back of the will or on an envelope containing the will? On the other hand, if there is no requirement of some physical relationship between the relevant act and the will itself, a whole range of additional problems would be created such as disputes over the efficacy of oral conversations or letters of instruction to revoke a will. The validity of these matters is, in our view, best left to the operation of the general dispensing power which we propose in Chapter 6. We therefore favour the general approach of the Law Reform Commission of British Columbia and conclude that there should be some requirement of a physical relationship between the act and the will In our view there should be a requirement that there be “writing on” the will or some physical “dealing with” the will, coupled with the requisite intent (para 5.10), before there is revocation by this mode. The recommendation which we make (para 5.12) about the court being satisfied “from the state of the document” that the writing on the will or the dealing with it was done with a particular intent will also underline this requirement of a physical relationship.

5.10 As to the requisite intent which should accompany such an act, it is our view that the court should be satisfied that it was the testator’ s intention that the relevant act would revoke the will. Such a test would place an evidentiary onus on those alleging revocation For that reason alone; most testators would be encouraged to prefer the more traditional modes of revocation involving some writing expressing an intention to revoke which is duly attested and signed by witnesses. This test would also bring this mode of revocation into line with the philosophy underlying the general dispensing power recommended by us in the next chapter and the criterion for invoking it (see especially paras 6.25 and 6.29).

5.11 Such a method of revocation should be capable of extending to the partial revocation of a will, for example where the testator strikes out certain clauses of a will (provided again that the court is satisfied that the requisite intent existed).

5.12 We therefore recommend that a will or any part of a will maybe revoked by any writing on the will or any dealing with it, which is done by the testator, or a person by his or her direction and in his or her presence, if the court is satisfied from the state of the document that the writing or dealing was done with the intent of the testator to revoke.

5.13 We have considered whether it is desirable to change the requirement that if the testator uses an agent to destroy the will that person should perform the relevant act” at his direction and in his presence”. The words quoted reveal a narrow double gateway through which testators must pass if they are to use agents to revoke wills by destruction “At his direction” has been interpreted to preclude a testator from subsequently ratifying a prior unauthorised destruction of the will by an agent.¹⁰ “In his presence” means that the testator whose solicitor is holding a will, and who telephones the solicitor with instructions to destroy the will does not revoke the will where the solicitor complies with those instructions in the testator’s absence.¹¹

5.14 We do not propose any change in the law relating to these matters Our proposal in para 5.12 retains the requirements that a testator who uses an agent must direct the destruction and that the destruction take place in the testator’s presence. To change these requirements would in our opinion expose the estate to undue risk of disputation without there being any clear evidence of need. The requirement that the testator should first direct the destruction puts the onus of acting clearly upon the testator to allow ratification of another’s prior act of destruction might encourage third parties to preempt the testator’s wishes and then put pressure on the testator to ratify the unauthorised action. Since the testator will be unable to testify on this issue and since it is a form of testamentary action not requiring any lasting evidence of the testator’s participation (except the non- production of the destroyed will), we think it inadvisable that there should be any relaxation in the existing requirement The need for the act of destruction to be done in the testator’s presence also serves to require the testator’s attentive involvement and emphasises the solemnity of the relevant action.

1. There is a rebuttable presumption that a will traced to the possession of the testator, and last seen there, but not forthcoming at his or her death was validly destroyed by the testator, Hardingham, Neave and Ford, Wills and Intestacy in Australia and New Zealand (1983) para 609.

2. The authorities are reviewed by Geddes and Rowland, Revocation by later will: relevance and proof of intention (1984) 58 ALJ 186 at pp187-189. See also Re Resch’s Will Trusts [1969] 1 AC 514 at 547-8.

3. See Re Morris [1971] P 62: Re Fenwick [1972] VR 646.

4. Note 2 above.

5. Re Jones’ Will (1895) 6 QLJ 261: In the Will of Gordon (1898) 9 BC(NSW) 12: Cheese v Lovejoy (1877) 2 P D 251.

6. Ibid.

7. See Lord Chancellor’s Law Reform Committee Report on The Making and Revocation of Wills (1980) Cmnd 7902 paras 3.40-3.41 and Re Kane (1978) 5 ETR44. Of course if this happens and is entirely undetected then, even if the existence of the will was known to someone other than the testator, it maybe revoked through the application of the presumption of revocation of a lost will (see note 1 above).

8. Report on The Making and Revocation of Wills (1981) at p67.

9. Id at p69.

10. Gill v Gill [1909] P 157: In Estate of Simkin [1950] VLR 341.