Will has been destroyed.

ThisIsWeird

Hi.

I don't have the full details of the situation yet, but I understand that if an author tears up their latest Will, they then become intestate. Ie, it doesn't revert back to the previous Will? Is that correct?

What if there is some evidence - diary entries etc - that the author's intention was to simply remove the latest Will, leaving their previous one in place? Ie, they thought all they had to do was tear up the newly-written one as they'd changed their mind, and that would sort it?

GDB2222

Normally, the first thing a will states is that the testator revokes all previous wills. Once revoked, a previous will can  be revived, but that requires specific documentation intending to do that.

These days, with word processors, it would be far more sensible just to do a new will.

poppystar

This is an interesting one that I’ve never got truly to the bottom of.

In my mind the logical thing would be if the final Will no longer existed and the previous one does then that is effectively no longer revoked since there is nothing in existence revoking it. 

A solicitor friend insists that it reverts back to intestacy not to a previous Will.

The probate office seem to agree that it reverts back to intestacy as when I was attempting to get a copy Will accepted they wanted me to sign an affidavit that under intestacy I would be entitled to the estate in question - that despite the fact that they had asked for and been given a copy of the previous Will which would not have followed the rules of intestacy. I questioned this but in the end I didn’t push too far as by that stage I’d been waiting nearly a year for probate! 

GDB2222

poppystar said:

This is an interesting one that I’ve never got truly to the bottom of.

In my mind the logical thing would be if the final Will no longer existed and the previous one does then that is effectively no longer revoked since there is nothing in existence revoking it. 

A solicitor friend insists that it reverts back to intestacy not to a previous Will.

The probate office seem to agree that it reverts back to intestacy as when I was attempting to get a copy Will accepted they wanted me to sign an affidavit that under intestacy I would be entitled to the estate in question - that despite the fact that they had asked for and been given a copy of the previous Will which would not have followed the rules of intestacy. I questioned this but in the end I didn’t push too far as by that stage I’d been waiting nearly a year for probate! 

You have got to the bottom of this, and what your solicitor friend says is correct.

Imagine several scenarios:

1. I make a new will revoking previous wills and burn the old one up.
2. I make a new will revoking previous wills and tear the old one up but keep the pieces.
3. I make a new will revoking previous wills and keep the old one (but write revoked on it).
4  I make a new will revoking previous wills and keep the old one (but don't write on it).

You can see that it's not that simple. There's a whole range of tiny steps you could take to revoke a will, or not. The law wants certainty, particularly where the testator can't give evidence about what he wanted. So, if a will is revoked, it is revoked. 

There is a process to revive a revoked will, but it's about as complicated as writing a new one. 

poppystar

GDB2222 said:

poppystar said:

This is an interesting one that I’ve never got truly to the bottom of.

In my mind the logical thing would be if the final Will no longer existed and the previous one does then that is effectively no longer revoked since there is nothing in existence revoking it. 

A solicitor friend insists that it reverts back to intestacy not to a previous Will.

The probate office seem to agree that it reverts back to intestacy as when I was attempting to get a copy Will accepted they wanted me to sign an affidavit that under intestacy I would be entitled to the estate in question - that despite the fact that they had asked for and been given a copy of the previous Will which would not have followed the rules of intestacy. I questioned this but in the end I didn’t push too far as by that stage I’d been waiting nearly a year for probate! 

You have got to the bottom of this, and what your solicitor friend says is correct.

Imagine several scenarios:

1. I make a new will revoking previous wills and burn the old one up.
2. I make a new will revoking previous wills and tear the old one up but keep the pieces.
3. I make a new will revoking previous wills and keep the old one (but write revoked on it).
4  I make a new will revoking previous wills and keep the old one (but don't write on it).

You can see that it's not that simple. There's a whole range of tiny steps you could take to revoke a will, or not. The law wants certainty, particularly where the testator can't give evidence about what he wanted. So, if a will is revoked, it is revoked. 

There is a process to revive a revoked will, but it's about as complicated as writing a new one. 

But if that new Will no longer exists then who is to say it ever existed except the person who destroyed it? So where is the proof the old one was revoked. In OPs scenario there is nothing left that indicates the new Will ever was. 

gwynlas

But if that new Will no longer exists then who is to say it ever existed except the person who destroyed it? So where is the proof the old one was revoked. In OPs scenario there is nothing left that indicates the new Will ever was. 

@poppstar If the original author died the two people who had witnessed the will could state that they had done so at a much later date than the will produced

GDB2222

poppystar said:

GDB2222 said:

poppystar said:

This is an interesting one that I’ve never got truly to the bottom of.

In my mind the logical thing would be if the final Will no longer existed and the previous one does then that is effectively no longer revoked since there is nothing in existence revoking it. 

A solicitor friend insists that it reverts back to intestacy not to a previous Will.

The probate office seem to agree that it reverts back to intestacy as when I was attempting to get a copy Will accepted they wanted me to sign an affidavit that under intestacy I would be entitled to the estate in question - that despite the fact that they had asked for and been given a copy of the previous Will which would not have followed the rules of intestacy. I questioned this but in the end I didn’t push too far as by that stage I’d been waiting nearly a year for probate! 

You have got to the bottom of this, and what your solicitor friend says is correct.

Imagine several scenarios:

1. I make a new will revoking previous wills and burn the old one up.
2. I make a new will revoking previous wills and tear the old one up but keep the pieces.
3. I make a new will revoking previous wills and keep the old one (but write revoked on it).
4  I make a new will revoking previous wills and keep the old one (but don't write on it).

You can see that it's not that simple. There's a whole range of tiny steps you could take to revoke a will, or not. The law wants certainty, particularly where the testator can't give evidence about what he wanted. So, if a will is revoked, it is revoked. 

There is a process to revive a revoked will, but it's about as complicated as writing a new one. 

But if that new Will no longer exists then who is to say it ever existed except the person who destroyed it? So where is the proof the old one was revoked. In OPs scenario there is nothing left that indicates the new Will ever was. 

You are saying that there’s scope for mistakes. Yes, there must be. 

sheramber

gwynlas said:

But if that new Will no longer exists then who is to say it ever existed except the person who destroyed it? So where is the proof the old one was revoked. In OPs scenario there is nothing left that indicates the new Will ever was. 

@poppstar If the original author died the two people who had witnessed the will could state that they had done so at a much later date than the will produced

The witnesses may not know anything about  the will being destroyed or even know that the person had died. Or may themselves be deceased. 

The person who witnessed my will is dead.

msb1234

gwynlas said:

But if that new Will no longer exists then who is to say it ever existed except the person who destroyed it? So where is the proof the old one was revoked. In OPs scenario there is nothing left that indicates the new Will ever was. 

@poppstar If the original author died the two people who had witnessed the will could state that they had done so at a much later date than the will produced

But they would not be contacted by Probate as the witnesses of the first will would be. 

Emmia

Can I presume that you're asking as you benefit under the previous will, but not the current will?

I think this scenario is a good reason to lodge your original will with HMCTS and for your executors (at least) to have a printed or scanned copy, so that the testator's final wishes are known, but the original remains undestroyed.

A copy of a will is not normally binding /valid even if the original is lost. It might just mean that intestacy rules will be used, as it will confirm that a previous will was revoked.

ThisIsWeird

Emmia said:

Can I presume that you're asking as you benefit under the previous will, but not the current will?

I think this scenario is a good reason to lodge your original will with HMCTS and for your executors (at least) to have a printed or scanned copy, so that the testator's final wishes are known, but the original remains undestroyed.

A copy of a will is not normally binding /valid even if the original is lost. It might just mean that intestacy rules will be used, as it will confirm that a previous will was revoked.

It doesn't involve me in any respect, other than I know the person(s) involved.

Ok, the situation regrading the destroyed Will has been clarified - it renders the estate intestate. I doubt there will be an answer to this part - it's the stuff of the type of legal dispute you read about in the papers - but what if there is some evidence that the author had destroyed their last Will because they changed their mind, with the intention of the previous Will remaining the 'one'?