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Is first will still valid??

Is first will still valid??

Postby raydona » Thu Mar 30, 2017 1:30 am

Hello, A person made a will where he left his entire estate to person 1. However, afterwards he cancelled his first will and made a second will where he left the vast proportion of his estate to person 1 and the rest to person 2. Person 1 is challenging the validity of the second will claiming that the testator was not of sound mind when he made the second will. If person 1 is successful will he be able to execute the first will given that it was cancelled when the second will was drawn up? All answers will be greatly appreciated.
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Re: Is first will still valid??

Postby atticus » Thu Mar 30, 2017 6:24 am

A will revokes all previous wills. Logic therefore suggests that if a will is declared invalid, the revocation of a previous will has not validly happened, and so the previous will can be proved.

However, that does not always apply. And that is the extent of my recollection from the relevant courses at law school. In some circumstances the deceased may be treated as having died intestate.

Professional advice should be obtained.
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Re: Is first will still valid??

Postby dls » Thu Mar 30, 2017 6:52 am

A second will need not revoke the first (such is a codicil), but usually the first words of the second will, will operate to revoke all earlier testamentary dispositions.

There is a rule that a will speaks from the date of death, words such as 'I give my ferrari to George' operate at the date of death, not when the will is executed. If that element of law applies to the revocation clause then an earlier will would remain 'alive' until the death.

It is good practice on the execution of a second will to destroy the earlier will.

I think this has been litigated.
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Re: Is first will still valid??

Postby theycantdothat » Thu Mar 30, 2017 8:35 am

Section 20 of the Wills Act 1837 sets out how a will may be revoked:

No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

The "as aforesaid" refers to circumstances such as marriage or divorce which may wholly or partly revoke a will.

Applying the section, if a testator executes what he thinks is a will but which turns out not to be, then the execution of that document does not revoke the earlier will. That does not mean though that the earlier will has not been revoked in one of the other ways allowed by the section. If the testator has destroyed the earlier will that may be taken as evidence of revocation. However, the doctrine of dependent relative revocation may ride to the rescue. This says that if a testator revokes a will under a misapprehension (which in this case would be the belief that he had executed a new valid will) the revocation is of no effect. It all comes down to the circumstances of the case. Assuming he would not benefit to the same extent under an intestacy, anyone seeking to upset a will with a view to reviving an earlier one must proceed with extreme caution lest they unwittingly end up with a situation where the deceased is deemed to have died intestate.
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Re: Is first will still valid??

Postby miner » Thu Mar 30, 2017 3:09 pm

If it can be proved, with contemporaneous medical evidence, that the Testator did not have mental capacity when he signed the second Will, it will be invalid.

However, it will be up to the person challenging the second Will to prove to the satisfaction of a Court that mental capacity was lacking at the time of its signing.

THAT could be an almost impossible hurdle to overcome, and otherwise, the second Will will be assumed to be legally valid.

The requisite medical evidence of mental incapacity could well be impossible to obtain.
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Re: Is first will still valid??

Postby dls » Thu Mar 30, 2017 6:56 pm

Thank you tCDT.


THAT could be an almost impossible hurdle to overcome, and otherwise, the second Will will be assumed to be legally valid.

The requisite medical evidence of mental incapacity could well be impossible to obtain.


It may indeed be difficult, but it is a regularly litigated topic.
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Re: Is first will still valid??

Postby atticus » Thu Mar 30, 2017 8:45 pm

And some such claims do succeed, just as some fail. The evidence should be obtained and assessed. The decision to proceed should be based on an assessment of the chances of success, based on the evidence.
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