AA Legal Documents

Cancelling a Will

Contents

A Will is cancelled by:

  • Making a subsequent Will containing a clause revoking the earlier Will
  • Physically destroying the Will
If it is the person's intention to cancel their existing Will, it is best to make the position absolutely clear in the new Will or codicil (a codicil is a document which alters the terms of an existing Will).

Making a later Will

At any stage during their lifetime a person can decide to change their Will as long as they have testamentary capacity (see 'Capacity and the mind of the testator'). If their mental condition deteriorates and they lose their testamentary capacity, the existing Will would remain in force.

Cancellation by a later Will

If a later Will is intended to cancel the whole of an earlier one, it should contain a suitable cancellation clause that clearly indicates that the testator cancels all former Wills. This is called a revocation clause. If the new Will or codicil (a document which alters an existing Will) does not contain an express revocation clause, it may still cancel the earlier Will, but there may not be a complete cancellation.

For example, if the earlier Will leaves a specific gift to John and the subsequent Will, which does not contain a revocation clause, makes no mention of the gift, the gift in the earlier Will is not cancelled and John will receive his gift.

The effect of marriage or civil partnership

Marriage or civil partnership in Scotland does not cancel a Will. Therefore if a person is about to get married or enter into a civil partnership, but wishes to make a Will before the date of marriage or civil partnership, they can do so. If a marriage or civil partnership comes to an end, that will not revoke a Will and so it is important that in these circumstances the testator considers making a new Will.

Destroying your Will

A testator (someone who makes a Will), or somebody instructed by the testator, can destroy the Will by burning, tearing, or destroying the document in some other way. However, it must be the intention of the testator that he or she wishes to cancel the Will in this way and physical destruction without intention to cancel is insufficient.

A Will destroyed accidentally is not cancelled. If its contents can be reconstructed (for example, if the testator or somebody else kept a copy) an order may be obtained allowing a copy of the Will to be accepted by the Sheriff Court.

If a Will cannot be found at the death of the testator, it is presumed that the Will has been destroyed with the necessary intention to cancel the Will. However, if there is evidence to the contrary, the court may accept the evidence in support of the fact that the testator may have made some remark shortly before their death that expressed his or her wishes to dispose of their estate.

Significant problems arise where the testator physically destroys only part of the Will. If the part destroyed is a sufficiently vital part (for example, their signature(s)), this partial destruction may be held to cancel the entire Will. However, if the destruction is not as substantial or important then the partial destruction may cancel only that part of the Will that was actually destroyed.

The result depends on the testator's intention, and in the absence of evidence as to the testator's actual intention, the court will examine the physical condition of the document. If a person wants to cancel their Will by destruction, they should destroy the entire Will completely and ensure the new Will contains a revocation clause which will remove any doubt as to what the testator intended.