Where there’s a Will, there’s a way

The court has found that a dying woman had the necessary capacity and intention to make a deathbed revocation of her Will by tearing it in half.

Carry Keats (‘the deceased’), aged 92 at the time, had previously made a Will that left her estate to her cousins in varying shares. However, destroying her Will had the effect of leaving her estate intestate and, as a result, the entirety of it passed to her younger sister.

During her lifetime, the deceased had been quite close with her cousins but had a ‘love-hate relationship’ with her sister that at times was acrimonious and fraught although they had reconciled and grown closer during the final years of the deceased’s life.

In June 2021, the tables turned with the deceased having a serious falling out with her cousins following discussions around her moving into a nursing home. The deceased took steps to revoke her Will which named her cousins as executors and also beneficiaries of 50% of her estate.

In January 2022, the deceased was hospitalised.  Her solicitor went to see her in hospital at which time the deceased confirmed her instructions that she did not want her current Will to remain in place. The solicitor had brought the original of the Will with her and advised the deceased that she could tear it up, which would leave her estate intestate meaning her sister would inherit everything.

The deceased was happy to do this as she was adamant she didn’t want her cousins to inherit. She managed to tear three quarters of the way through. Her solicitor then asked her if the deceased wanted her to help her tear through the rest, and the deceased nodded. With her solicitor’s help, the rest of the Will was torn up.

When the solicitor tried to take instructions as to a new Will, the deceased was drifting in and out of consciousness due to the pain relief she had received shortly before the appointment and was contradicting herself. The solicitor was unable to take her instructions and, two weeks later, the deceased passed away.

The issues for the court to consider were:

• Whether the deceased successfully revoked her Will; and
• Whether she had the mental capacity at the time to do so.

Section 20 of the Wills Act 1837 states that a Will can only be revoked in three ways: by the testator making another Will or codicil, by the testator signing a declaration of an intention to revoke or by destruction.

The judge found that the deceased had the necessary intention to destroy her Will and that this intention was clearly indicated to her solicitor. The deceased had fully understood the implications of destroying the Will, had torn the Will three quarters of the way through, and had authorised her solicitor to assist her in tearing up the remainder by nodding her head when asked. The deceased had responded to the solicitor’s direct offer of assistance and the judge held that her nod was a discernible non-verbal communication. It was therefore held that she had sufficiently destroyed her Will as intended.

As to whether the deceased had the mental capacity to complete the destruction, once again the judge found in the deceased’s favour. He favoured the witness evidence given by the deceased’s solicitor during the trial over the opinion evidence of the medical expert. This was because the solicitor had been a probate lawyer for over 16 years, had worked with the deceased for several of those years, and was very familiar with the deceased’s “forthright” personality, her previous Wills and the dynamics of the deceased’s relationships with her extended family.

Also, the opinion evidence supported the solicitor’s evidence that the deceased was not suffering from the likes of dementia but rather that she suffered from delirium, the intensity of which “… may have waxed and waned over time.” As such, the judge held that the deceased had the necessary mental capacity in that narrow window to reach and act on her decision to destroy her Will.

The High Court decision means that the deceased succeeded in revoking her Will and the entirety of her estate shall now pass to her sister. The case is also a rare reported occurrence of a Will being destroyed from being torn up but highlights that the testators’ intentions will weigh heavily in the court’s mind when ruling on such cases.

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