discarding a will

SILVAMAN

Hi-just wondering if there is a technical term for not just discarding a will but revoking it and not making a new one. Thanks

Pat Mustard

It is called revocation of a will.

Also see amendment to s.85 SA'65 per S.79CPCROCA'10.

coylemj

SILVAMAN wrote: »

Hi-just wondering if there is a technical term for not just discarding a will but revoking it and not making a new one. Thanks

Here's a question on the revocation of a will by the testator legally destroying it .....

Say I made a will a while ago, let's call it will 'A', then I make will 'B' which revokes all previous wills. By the provisions of S.87 (below), if I revoke will 'B' by destroying it, it does not revive the earlier will 'A' but after I die, if someone shows up with the original will 'A', won't that be my 'last' will and testament and who's to show that it was revoked by the (now destroyed) will 'B'?

87.—No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.


http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0087.html#sec87

Fred Swanson

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Pat Mustard

coylemj wrote: »

Say I made a will a while ago, let's call it will 'A', then I make will 'B' which revokes all previous wills. By the provisions of S.87 (below), if I revoke will 'B' by destroying it, it does not revive the earlier will 'A' but after I die, if someone shows up with the original will 'A', won't that be my 'last' will and testament and who's to show that it was revoked by the (now destroyed) will 'B'?

This may arise as an exam type question but I would think that this type of scenario must be uncommon these days.

Solicitors would be sued out of existence if they were negligent to this extent. Also, people tend not to be so careless as to revoke wills by destruction without legal advice.

To answer the academic question, the destruction of B does not revive A.

As to who will give evidence that A was revoked, not enough information has been given to answer the question. If the destruction happened in a solicitor's office, presumably there would be a memo to the effect that the disponor had destroyed B in the presence of the solicitor.

On a practical note, if somebody has retained a solicitor, destruction of B should not happen until a new will, C, has been prepared and is ready for execution. Presumably C would contain a revocation clause, meaning that destruction of B would be unnecessary except to tidy up the file by shredding the revoked will(s).

NUTLEY BOY

Fred Swanson wrote: »

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I don't think so. The will is a formal statement of wishes. Does the act of destroying the physical document render the wishes nugatory?

Would this not be the same position, in principle, as a lost will i.e. the document is lost but the intentions of the testator remain.

On a practical level there would of course be great problems with the evidentiary proof of the contents and intentions within the will.

I am sure that there are rules for a lost will situation but I don't know them off hand.

NUTLEY BOY

P.S. found the following link from Kieron Wood http://irishbarrister.com/wills.html

The bottom of the article suggests that a lost will may be capable of reconstruction. Litigation job however !!!

Fred Swanson

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Peregrinus

Fred Swanson wrote: »

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Depends on the circs. You thought it was a different document? It was accidentally included in a bonfire you lit? Destroying a will is only effective to revoke it if you destroy it with the intention of revoking it, so that intention would have to be either explicit or a very strong inference from the circumstances.

NUTLEY BOY

Fred Swanson wrote: »

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On that evidence the only intention that is clear is that of destroying the physical document. The act of destruction may have any number of intentions behind it.

How would you form an evidentiary connection between that act and an intention to revoke ?