(Last Updated On: 22nd July 2020)

Continuing my series of posts comparing wills and succession topics under English and Spanish law, today I look at the revocation of wills. Learn about how wills can be revoked under English and Spanish law and take note of the similarities and differences.

Bear in mind that

  • ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
  • ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and doesn’t include the local laws of specific regions.

The revocation of wills in England and Wales

Generally, two elements are required to revoke an English will: (1) an unambiguous intention to revoke, and (2) either an express or implied revocation by a subsequent valid testamentary instrument or the destruction of the will.

Example 1

Example 2

  Intention to revoke

  Revocation (express or implied) by a subsequent valid testamentary instrument

  Intention to revoke

  Destruction of the will

 

The testator’s intention to revoke may be absolute (with immediate effect) or conditional (taking effect when the condition is fulfilled). Where revocation is by destruction, whether the testator’s intention to revoke is conditional is a question of fact; where revocation is by another duly executed testamentary instrument, it is a question of construction.

Moreover, the English law deems entering into a marriage or civil partnership such a life-changing event, that doing so will automatically revoke a person’s existing will.

Express or implied revocation

Express revocation

A will (or part of it) may be revoked by subsequently executing a valid will or codicil. The most common way of doing so is by inserting a clause in a will (or other document executed as per section 9 of the Wills Act 1837) expressly revoking all previous wills. Although there are no requirements as to the wording of such clause, it generally reads something along these lines:

I revoke all previous wills and codicils.

I revoke all earlier wills and other testamentary dispositions.

I revoke all wills codicils and other testamentary dispositions previously made by me.

The express revocation clause will be void if it is subject to a condition which is not satisfied, or if the testator lacked knowledge and approval. However, the clause will be effective if the testator was mistaken as to its legal effect.

Implied revocation

A person’s will can be formed by more than one testamentary document, to the extent to which they are not inconsistent. If there are clear inconsistencies between the documents or the later repeats what is said in the former, the later document revokes the earlier, either partly or wholly.

Revocation by destruction of the will or codicil

Section 20 of the Wills Act 1837 establishes that revocation by destruction requires two elements to be present at the same time:

(1) an intention to revoke (animus revocandi); and

(2) an act of destruction.

Intention to revoke

The testator must have an intention to revoke when destruction takes place; accidentally destroying a will does not constitute revocation, nor does destroying a will without intending to revoke it (e.g. destroying a will on the basis of a mistaken belief). Moreover, the testator must also have the same mental capacity when revoking than when first making the will.

An act of destruction

It must be an actual act of destruction (e.g. burning a will), as opposed to a symbolic act (e.g. crossing out the text with a pen). The act of destruction may be carried out by the testator himself or by another person in his presence and by his direction.

With regard to the extent of the destruction, the whole will does not need to be destroyed, but the destruction must be sufficiently large or affect a vital part of the will (e.g. cutting out the testator’s signature).

Two presumptions may apply, subject to evidence to the contrary:

  1. Where the testator had the will at the time of death and is found in a mutilated condition, the testator is presumed to have destroyed the will with the intention to revoke it.
  2. Where it is known that the testator had the will at the time of death, but the will cannot be found at death, the testator is presumed to have destroyed the will with the intention to revoke it.

Revocation by marriage or civil partnership

As mentioned above, English law deems entering into a marriage or civil partnership such a life-changing event, that doing so will automatically revoke a person’s existing will.

But a will is not revoked if it shows

  • that the testator was expecting to marry (or entering a civil partnership) with a particular person (e.g. the will expressly refers to the beneficiary as ‘my fiancé X’ or ‘X, my future husband’); and
  • an intention for the marriage (or civil partnership) not to revoke the will.

However, if the testator subsequently marries a person different to the one expressed in the will, then marriage will automatically revoke the will.

NOTE THAT unlike in England and Wales, entering into a Spanish marriage or civil partnership does not revoke a Spanish will.

The revocation of Spanish wills

Revocation may be express (expresa) or implied (tácita), and whole (total) or partial (parcial). Moreover, closed wills (testamentos cerrados) may be revoked by a physical act (revocación real ormaterial).

Express revocation

The express revocation of wills is governed by artículos 738739 Código Civil:

Artículo 738. A will may only be revoked wholly or partly by complying with the formalities required for making a will.

Artículo 739 (second paragraph): However, the earlier will revives, where the testator revokes the later will and expressly declares his intention for the earlier will to remain valid.

(My own English translation. Not official.)

Expressly revoking a will requires the testator expressly declaring his intention to revoke an earlier will on a subsequent will. Any type of will may revoke an earlier one, as long as the new will is valid. For example, a holographic will or a closed will may revoke an open will.

NOTE THAT unlike an English will, a Spanish will can only be revoked by a later valid will, as codicils are not allowed under Spain’s derecho común.

Implied revocation

The implied revocation of wills is governed by artículos 739740 Código Civil:

Artículo 739 (first paragraph): An earlier will is revoked by law by a valid later will, where the later will does not include the testator’s express intention for the earlier will to remain valid, either wholly or partly.

Artículo 740. The revocation will take effect despite the later will failing due to the heir or legatees lacking capacity or rejecting the inheritance.

(My own English translation. Not official.)

As you can see, artículo 739 establishes that, subject to contrary intention by the testator, a new valid will is presumed to revoke an earlier will. The testator’s intention for an earlier will to remain valid may be express or implied (inferred from the contents of both wills, when applying rules of construction).

Revocation by physical act

Revocación real or revocación material can only apply to closed wills (testamentos cerrados).

Reminder: the most common type of will in Spain is the open will (testamento abierto or notarial), which is made before a notario. Closed wills are made privately either by the testator himself or by a third party at his direction and put inside a sealed envelope. The will is to be authorised by a notario but (unlike in the case of open wills) the testator may, if they wish so, keep the will.

This type of revocation is governed by artículo 742 Código Civil:

A closed will is presumed to have been revoked, where the will appears at the testator’s home with broken covers or altered seals, or with erased, scratched or altered signatures attesting the will.

However, a closed will is valid if there is evidence of the testator neither intending to mutilate the will nor being aware of the mutilated condition, or evidence of the testator not having full mental capacity. Where the cover is broken or seals have been altered, the authenticity of the will must be established for the will to be valid.

Where the will is in a third party’s possession, that third party will be presumed to have caused the mutilation; where the cover is broken or seals have been altered, the will will not be valid unless its authenticity is proved; where the cover and seals are intact but signatures have been erased, scratched or altered, the will will be valid, unless it is proven that the testator himself provided the will in such mutilated condition.

(My own English translation. Not official.)

NOTE THAT revocation by physical act can only apply to closed wills. Unlike English wills, Spanish open wills cannot be revoked by an act of destruction. Spanish open wills (by far the most common type of wills) are made and always kept at the notario’s office, so destruction cannot take place.

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IRENE CORCHADO RESMELLA is a Spanish translator based in Edinburgh. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.

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