Revoking a Will - the consequences for a previous Will.

[Pezza54]

I do understand this, but that issue has yet to have a conclusion. So, looking at the alternative :-)

When you say you're looking at the alternative, do you mean the executors or beneficiaries are thinking about trying to prove the second will was valid until it was destroyed by the testator, thus revoking the first will, leaving the estate to be distributed as per intestacy rules?

Have you found the shredded pieces of the will, intend to stick them back together hoping this will refresh the witness's memory when they see it?

[atticus]

It is not the destruction of the second will that revoked the first. The first will was revoked by the making of the second, which contained an express clause revoking all previous wills.

[atticus]

I'm not sure a shredded document stuck back together would be legible. I've never tried it

This was successfully done with Stasi records.

[Pezza54]

It is not the destruction of the second will that revoked the first. The first will was revoked by the making of the second, which contained an express clause revoking all previous wills.

Yes that's how the first sentence in post 16 reads

[Pezza54]

This was successfully done with Stasi records.

Let's hope the testator didn't use a cross cut shredder

[Dev'sAd]

You haven't given us any of the backstory dev'sad or told us your role in this, so difficult to advise further. Have the Executors of the original Will applied for Probate on it? Has this been challenged?
However, the fact that you got conflicting opinions from solicitors before you came here, and different opinions here should tell you that there is no simple answer to your question.
If the issues at stake and the £££ involved justify it you will need to take court action to get a judicial decision. Otherwise, we just drift towards it being a debating forum - interesting in its way, but unlikely to give you the definitive answer you want.

My role - a friend of the executor of the earlier Will, and trying to do the right thing. I have nothing at all to personally gain, other than a good feeling from the correct moral outcome.

Backstory: the deceased wrote a valid Will, and then - a couple of years later - wrote another. Little tangible difference in content regarding the beneficiaries. However, the deceased's family were completely excluded from both (they were effectively estranged). Very soon after writing the second Will, the testator completely destroyed it, and explained their actions - and intent - in writing; that was to destroy the newer Will, and revert to the previous one.

Things that are not in question:

1) the family were excluded from both Wills, with them having been effectively estranged. The first Will was completely valid - written with the assistance of a Will-writing solicitor, witnessed correctly, and then stored by this solicitor until released on the testator's passing. The testator at no time instructed the Will-holder to revoke or destroy this Will.

2) The second Will has only minor changes as regards beneficiaries, but - as mentioned - still excludes any surviving family member. This Will was drafted by the same Will-holder as before, but no completed (ie signed, witnessed) copy was submitted to them. No currently-living person has seen the completed second Will (when 'witnessed' - if it was correctly - the author covered the document, leaving only the signed area exposed. The witnesses cannot state what document it is they signed). The 'draft' exists, and is presumed to reflect the changes made.

3) Very shortly afterwards, the testator completely and intentionally destroyed this second Will, explained doing so in writing, and made it clear that their wish was to revert to the previous Will.

4) The family are claiming 'intestate'.

So, I'm trying to assist the executor of the first Will to have their late friend's true wishes recognised. Towards this aim, there would appear to be two possible avenues to explore; one is to deem the second Will invalid - and this is being pursued - and the second is to deem the first Will the 'controlling document' as unambiguously reflecting the deceased's true and documented wishes on destroying the second Will.

Thoughts? :-)

The moral case is undeniable. The legal case can possibly be made. Hence my Q in post 10.

[Dev'sAd]

It is not the destruction of the second will that revoked the first. The first will was revoked by the making of the second, which contained an express clause revoking all previous wills.

I do understand that.

Do you have any thoughts on the scenario I outlined in post 10? Would shredding - and then taping together, along with an explanation of both acts - make a Will valid again?

[atticus]

Section 22 of the Wills Act 1837 provides that revival of a revoked will can only occur by re-execution or by a written declaration of intent to revive, executed in the same way as a will.

re-execution requires signature in the presence of 2 witnesses, rather more than using sticky-back plastic.

Re post 23, What do you mean when you say that this testator wrote a will? The important question is not whether it was written but whether, once written, it was validly executed. Everything you say points to intestacy.

[Pezza54]

Now I'm confused
Have we established that the second will was never valid? There is no proof that it was valid and now can't be revived
If it was never valid, doesn't that mean the first will was not revoked and still stands?

[Dev'sAd]

Now I'm confused
Have we established that the second will was never valid? There is no proof that it was valid and now can't be revived
If it was never valid, doesn't that mean the first will was not revoked and still stands?

Not established. Still in question. Not disproved either.

[Dev'sAd]

Section 22 of the Wills Act 1837 provides that revival of a revoked will can only occur by re-execution or by a written declaration of intent to revive, executed in the same way as a will. Re-execution requires signature in the presence of 2 witnesses, rather more than using sticky-back plastic.

Re post 23, What do you mean when you say that this testator wrote a will? The important question is not whether it was written but whether, once written, it was validly executed. Everything you say points to intestacy.

Bit in bold. Yes, that is what the letter of the law says, but it is a blunt tool, and cannot cover every eventuality. Are you categorically saying that if a testator deliberately tore up their Will, and then re-taped it, explaining in writing that they made a mistake and wished it to remain valid, and then passed away before 're-executing' it in front of two witnesses, that they would have died intestate?

"Re post 23" bit - there is uncertainty over whether the second Will was ever valid. The witnesses are uncertain about what it was they were asked to witness. The completed document was never returned to the Will-writing company for ratification or storage - all they have is the issued draft. They do, however, retain the original of the previous Will, and were never instructed to destroy or revoke it.

[Pezza54]

"Re post 23" bit - there is uncertainty over whether the second Will was ever valid. The witnesses are uncertain about what it was they were asked to witness. The completed document was never returned to the Will-writing company for ratification or storage - all they have is the issued draft. They do, however, retain the original of the previous Will, and were never instructed to destroy or revoke it.

Isn't it up to the estranged family to prove that the second will was valid, revoking the first will?

IMO your executor friend should strongly defend the family's claim on the grounds the second will was never valid

[atticus]

Bit in bold. Yes, that is what the letter of the law says, but it is a blunt tool, and cannot cover every eventuality. Are you categorically saying that if a testator deliberately tore up their Will, and then re-taped it, explaining in writing that they made a mistake and wished it to remain valid, and then passed away before 're-executing' it in front of two witnesses, that they would have died intestate?

That is categorically what the law says.

"Re post 23" bit - there is uncertainty over whether the second Will was ever valid. The witnesses are uncertain about what it was they were asked to witness. The completed document was never returned to the Will-writing company for ratification or storage - all they have is the issued draft. They do, however, retain the original of the previous Will, and were never instructed to destroy or revoke it.

This is where we get into factual difficulty, the bone that Pezza is gnawing at. There are various items of evidence that need to be pieced together. In this case the deceased's diary appears also to be significant, and something that a court should take into account.

To answer Pezza's question, I think the burden of proof falls upon the party seeking probate, whether on the basis of a will or intestacy. Your friend has relevant information which should not be concealed or destroyed.

[Pezza54]

Yes, if the executor ended up having to make a court application to remove a caveat, IMO the estate should argue that the second will was never valid, meaning that the original will was not revoked
The executor can fund legal costs from the estate, but the family risk having to pay expensive legal costs if they lose in court

In support of the executor's court application:
the second will closely followed the first will (evidenced by the draft will)
the testator did not write to the will holder telling them the second will had been signed and the original will should be destroyed
the testator destroyed the second will soon after the document was signed
the testator wrote in their diary what they had done stating their wish for the original will to be followed
both the witnesses are unable to attest the document they signed was the deceased's will

[atticus]

The executor can fund legal costs from the estate, but the family risk having to pay expensive legal costs if they lose in court

Ahem. The executor may be able to fund legal costs from the estate. This is very far from certain. He also has a risk of being personally liable for legal costs.

Is the executor also a potential beneficiary under the will he seeks to propound? Are you?