REVOCATION, ALTERATION, AND

REVIVAL OF WILLS
 REVOCATION OF WILLS

• Revocation is the formal act of cancelling or annulling a Will.

• The process is strictly regulated by Sections 9 and 10 of the
DEWIPA:
• Destroying the Will with the intention to revoke it
• Making in a subsequent Will or some other document, a statement
that the previous Will is revoked.
• Where the testator makes a subsequent Will leaving a previous Will,
the latter Will prevails over the earlier Will.
• A Will can be revoked by the entering into of a subsequent marriage
or by divorce.
1. REVOCATION BY
DESTRUCTION
The case Cheese v Lovejoy [1877] 2 PD 251 profoundly states that “all the destroying in the
world without intention will not revoke a will, nor all the intention in the world without
destroying: there must be the two.

The destruction of a will only has the effect of revoking the will if it is accompanied by animus
revocandi.

What Constitutes Destruction

• Scratching the words of the Will out with a knife constituted sufficient destruction – Hobbs v
Knight [1836] 1 Curt 768

• Cancelling a Will by striking its contents through with a pen and crossing out the name of the
testator is not an act of destruction – Stephens v Taprell [1840] 2 Curt 459; also read
Cheese v Lovejoy; D Perkes v Perkes [1820] 3 B & Ald 489
• Writing the word ”cancelled” over a signature was held not to constitute effective destruction
of a will – In the Goods of Brewster [1859] LJP 69
“Then the question comes to this: Is a Will destroyed, within the meaning of the 20 th section, by
being struck through with a pen, the name of the testator being crossed out, and the names of
the attesting witnesses being struck through? It appears to me quite impossible to put such a
construction upon the Act as to say, that cancelling a will by striking it through with a pen, is a
destruction of the will. When the Legislature after mentioning ”burning” a will and “tearing” a
 • It is not necessary that the material on
which the Will is written must be destroyed.
• It is sufficient if the essence of the will is
destroyed.
• Re Adams (deceased) [1990] 2 All ER 97:
the signatures of the testatrix and of the
attesting witnesses were overlaid with a
DESTRUCTION OF substance which appeared to consist of ink
MATERIAL from a ball-pen to an extent that they were
illegible or barely legible.
• The Court held that, even though the
document was not destroyed, the heaviness
of the scoring had made it impossible to
make out with a naked eye the signatures or
whose they were without having recourse to
other extrinsic evidence. The material part
of the will had been destroyed.
• Read: In the Goods of Godfrey [1893] 69
LT 22
 • Section 9(1) of the DEWIPA implies
that the will should be destroyed by
the testator.
• An interesting scenario is where the
testator, with the intention of
WHO SHOULD DESTROY revoking the Will, instructs a third
THE WILL? party to destroy it.
• In the DEWIPA, the law is silent as
to whether such destruction can be
considered as revocation.
• The law that precedes the DEWIPA,
however, provided under its section
20 that destruction can be done by
the testator or by some person in
his presence and by his direction.
• Would such a position be applicable
under the prevailing law?
 • The destruction must be coupled
with animus revocandi or there is
no valid revocation.
Cases to be Read
• In the Estate of Kremer [1965]
ANIMUS REVOCANDI 110 SJ 18
• Mills v Millward [1890] 15 PD 20
 • If a Will was last known to be in the testator’s
possession but cannot be found at his or her
death, it is presumed to have been destroyed
by the testator with the requisite intention to
revoke it.
• In Welch v Phillips [1836] 1 Moo PC 299, Lord
Wensleydale explained the presumption as
PRE SUM PT I ON OF follows:
D E ST RUC T I ON WI T H If a will, traced to the possession of the deceased,
A N I M US RE VOC A N D I and last seen there, is not forthcoming on his
death, it is presumed to have been destroyed by
himself, and that presumption must have effect,
unless there is sufficient evidence to repel it. It is
a presumption founded on good sense; for it is
highly reasonable to suppose that an instrument
of so much importance would be carefully
preserved, by a person of ordinary caution, in
some place of safety, and would not be either lost
or stolen; and if, on the death of the make, it is
not found in his usual repositories, or else where
he resides, it is in a high degree probable, that
the deceased himself has purposedly destroyed
it. But this presumption may be rebutted.
 • Proving that the Will was not
destroyed by the testator but by a
third party not acting under the
instructions of the testator, that it
was destroyed by mistake or
accident or that the testator had
REBUTTING THE evinced an intention to adhere to
PRESUMPTION the terms of the will.
• Oral evidence or a draft of the Will
may be admitted as evidence to
prove the contents of the Will – Re
Webb [1964] 1 WLR 509
• In Sugden v Lord st Leonards
[1876] 1 PD 154, the Court
admitted the oral evidence of the
daughter of the testator, who had
read over the will with her father, to
prove the contents of the will.
• Also read the case of Lambell v
2. REVOCATION BY WRITTEN
STATEMENT
 • The testator can make a statement,
in a document executed like a will,
of his intention to revoke the will.
• In the case of Re Spracklan’s
Estate [1938] 2 All ER 345, the
testator wrote a letter that was
MODE OF REVOCATION signed by him and properly
witnessed which was addressed to
the manager of the bank having
custody of her will. The letter
contained a statement: “Will you
please destroy the Will already
made out.”
• It was held that this was sufficient
to revoke the will held by the bank
even though the instruction to
destroy the will was not carried out.
3. REVOCATION BY
SUBSEQUENT WILL
 • Section 9(1)(b) of the DEWIPA envisages
revocation by express statement in the
subsequent will.
• Most wills contain revocation clauses.
• If valid, such a revocation clause revokes
all prior testamentary dispositions by the
testator as if they never existed.
EXPRESS REVOCATION
• Such revocation clauses can be limited in
application or conditioned on certain
events.
• In In the Estate of Wayland [1951] 2 All
ER 1041, a revocation clause only applied
to revoke a will that dealt with the
testator’s property in England, and did not
revoke a will that dealt with the testator’s
property in Belgium.
• Conditional revocation – see In the
Estate of O’Connor Deceased [1942] 1
All ER 546
 • Section 9(2) of the DEWIPA provides
that where a testator dies having
made more than one will the latest
in time of the said wills prevail over
the earlier wills to the extent of any
revocation, variation, or
BY L AW OR REVOCATION inconsistency.”
BY IMPLICATION
 3. REVOCATION BY
SUBSEQUENT MARRIAGE
 • According to Section 10 of the
DEWIPA, a marriage by the testator
after making a will automatically
revokes the will.
• The rationale was noted by the
Malawi Law Commission as follows:
GENERAL RULE
“When a person marries he or she
assumes certain responsibilities due
to the change of status and there are
more likely to be reflected in the
intestacy provisions than in a prior
will which, in any event, was not
made in contemplation of marriage.”
• To be effective, the marriage must
be valid – see De Reneville v De
Reneville [1948] P 100: a void
marriage cannot affect a will
because it never happened.
• Is the rule fair or even
 • A Will made in contemplation of
marriage with the person who
becomes the spouse of the testator
is not revoke by the fact of the
happening of the marriage.
• This is the position in Malawi and
EXCEPTION also the same in England.
• See the following cases:
• Re Hamilton [1940] VLR 60
• Sallis v Jones [1936] P 43

• There must be clear evidence that

the testator made the will in
contemplation of the marriage
between himself or herself and the
person with whom he or she later
married.
4. REVOCATION BY DIVORCE
 • Section 10(2) of the DEWIPA
provides that if the testator
divorces his or her spouse, any gift
made in a will in existence at the
time the marriage ends by the
testator to the spouse shall be
PARTIAL REVOCATION revoked.
• This is because divorce proceedings
will have taken care of matters of
distribution of property.
• Similarly, any appointment of the
spouse as an executor, trustee,
advisory trustee or guardian made
by the will shall also be revoked.
• It is partial revocation since
revocation only affects one
beneficiary or executor as the case
may be but the rest of the will
remains unrevoked.
 ALTERATION OF WILLS

• The Will is ambulatory and as such, it can be amended or

altered by the testator when he changes his mind or otherwise.
• An amendment can be done by executing a codicil to the will in
which the testator makes the amendments in clear terms, or
by making changes on the face of the will itself.
• A testator can scribble over or erase a clause.
 • Where it is established that the
alterations were made before
execution, such alterations are valid
as they are part of the Will when it
was subsequently executed.

ALTERATION BEFORE • An alteration that is deliberative is

EXECUTION OF THE WILL not effective.
• There is a common law presumption
that an alteration in pencil is merely
deliberative and that one in ink is
intended to be final.
• It is advisable that alterations must
be attested as there is a rebuttable
presumption that an unattested
alteration is not effective,
presumption which can be rebutted
by reference to extrinsic evidence
of the draftsman or other terms of
the executed will.
 ALTERATIONS AFTER • Section 9(3) of the DEWIPA provides
EXECUTION OF THE WILL that no obliteration, interlineations
or other alteration made in a will
after its execution has any effect
unless such alteration is signed and
attested as a will is required to be
signed and attested under section
6, or is referred to in a
memorandum written at the end of
the end or some other part of the
will and is so signed.
 REVIVAL OF WILLS

• Depending on how the will was revoked, it is possible to revive

it.
• If a will is revoked by an express statement in a subsequent
will, it can be revived by resigning and re-attesting the will with
the specific intention to revive it.
• Such will can also be revived by executing a codicil with a
statement that the revoked will is revived.