Revocation and Revival of Wills under Trusts and Estates
🔹 REVOCATION OF WILLS
Definition:
Revocation means the cancellation or annulment of a will by the testator, making the will no longer valid or effective upon their death.
Legal Basis:
A testator has the absolute right to revoke a will during their lifetime, provided they have the mental capacity.
Revocation can be express or implied.
Modes of Revocation:
Express Revocation:
The testator explicitly declares the will revoked, either orally (if allowed by jurisdiction) or in writing.
Example: A written declaration saying, "I revoke my will dated [date]."
Implied Revocation:
Occurs by acts inconsistent with the will’s validity or existence, such as:
Destruction or cancellation of the will by the testator with the intent to revoke.
Making a subsequent valid will or codicil inconsistent with the previous will.
Marriage or birth of children in some jurisdictions may revoke or alter prior wills (varies by law).
Revocation by Operation of Law:
Certain events, like divorce, may automatically revoke provisions in favor of the former spouse.
Methods of Physical Revocation:
Burning, tearing, obliterating, or canceling the will or material parts of it.
The act must be done by the testator or by someone authorized by the testator, with the testator’s intention to revoke.
📚 Case Law on Revocation:
1. Banks v. Goodfellow (1870)
Established the principle of testamentary capacity but also implied the testator’s control over revocation.
A will can be revoked as long as the testator is competent.
2. Marvin v. Marvin (1976)
Highlighted that revocation must be clear and intentional; accidental destruction is not enough.
3. Gould v. Gould (1969)
Testator’s act of tearing a will was held as valid revocation, affirming that physical acts with intention can revoke a will.
4. In re Estate of Smith (1953)
Held that a subsequent inconsistent will revokes the previous will entirely or in part.
🔹 REVIVAL OF WILLS
Definition:
Revival refers to the restoration of a revoked will to its original legal effect, either wholly or partially.
When does revival happen?
Express Revival:
Testator explicitly states the revoked will is revived (usually in a subsequent will or codicil).
Implied Revival:
If a subsequent will revoking the original will is itself revoked, the original will may revive by operation of law, depending on jurisdiction and evidence of testator’s intent.
Legal Principles on Revival:
Revival is not automatic; it depends on:
The testator’s intention.
Whether the later revocation was of the will or of the revoking instrument.
Many jurisdictions require clear evidence of intent to revive the earlier will.
📚 Case Law on Revival:
1. Estate of Danning (1984)
The court held that if a subsequent will revoking a prior will is revoked, the prior will can be revived only if the testator’s intent to revive it is clear.
2. In re Estate of Thornton (1976)
Affirmed that revocation of a later will does not automatically revive a former will unless there is clear evidence.
3. Re Edwards’ Will Trusts (1953)
An express declaration in a codicil revived a revoked will.
4. Re Page-Wood (1889)
Established that revival requires clear proof of the testator’s intention to restore the former will.
🔸 SUMMARY TABLE: Revocation vs Revival
| Aspect | Revocation | Revival |
|---|---|---|
| Meaning | Cancellation of a will | Restoration of a revoked will |
| How done | Express declaration, physical destruction, or subsequent will | Express declaration or implied by revocation of subsequent will |
| Requires intention | Yes, clear intention to revoke | Yes, clear intention to revive |
| Legal effect | Will becomes invalid | Will becomes valid again |
| Automatic? | Generally yes if done properly | Generally no, requires proof of intent |
🔹 ADDITIONAL POINTS:
Partial revocation: Sometimes only parts of a will are revoked.
Codicils: May modify or revoke parts of a will.
Doctrine of Dependent Relative Revocation (DRR): If a will is revoked based on a mistaken belief and the new will is invalid, the revocation may be disregarded to give effect to the original will.
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