Will interpretation, codicils & revocation

WAE.02 — Will Interpretation, Codicils & Revocation

Interpretation (construction)

The court gives effect to the testator's intention as expressed in the will, read as a whole.

• Ordinary meaning of words, in context. Technical/legal words get their technical meaning unless context shows otherwise.
• Armchair principle — sit in the testator's chair: surrounding circumstances at the date of execution are admissible.
• Administration of Justice Act 1982 s.21 — extrinsic evidence (including evidence of the testator's intention) is admissible where the will is (a) meaningless, (b) ambiguous on its face, or (c) ambiguous in light of surrounding circumstances. Direct evidence of intention is only allowed through these gateways.
• AJA 1982 s.20 — rectification by the court where the will fails to carry out the testator's intentions because of a clerical error or a failure to understand instructions. Apply within 6 months of the grant of representation (s.20(2)); later applications need the court's permission.
• A will "speaks from death" as to property (Wills Act 1837 s.24 — a general gift such as "all my shares" passes what the testator owns at death) but from execution as to people/things described (s.24 displaced for descriptions unless "now" or a contrary intention appears).

Codicils

A codicil is a supplementary testamentary document; it must satisfy the same s.9 Wills Act 1837 formalities as a will (in writing, signed by the testator with intent to give effect, witnessed by two).

• It republishes the will (treats it as re-executed at the codicil's date — relevant to s.24 "speaks from" timing and to confirming a gift to a witness's spouse made before the s.15 problem arose).
• Revival (Wills Act 1837 s.22) — a revoked will can be revived only if it still physically exists; revival needs either re-execution or a codicil showing an intention to revive. A will revoked by destruction cannot be revived (nothing survives to revive).
• Drafting trap: a codicil only alters what it expressly changes; the rest of the will stands.

Revocation (Wills Act 1837)

1. Marriage/civil partnership (s.18) — automatically revokes a prior will, unless made in expectation of that particular marriage/partnership. (Divorce does not revoke; under s.18A the ex-spouse/partner is treated as having died on the date of dissolution for gifts and appointments.)
2. Later will or codicil (s.20) — by an express revocation clause or by inconsistency.
3. Destruction (s.20) — "burning, tearing or otherwise destroying" by the testator (or by another in the testator's presence and at their direction) with intention to revoke (animus revocandi). Both act and intention are required — symbolic crossing-out is insufficient; a will last known to be in the testator's possession but missing at death is presumed destroyed with intent to revoke.

Common traps

• s.18 marriage revocation is the classic missed point — a pre-marriage will is gone unless made in contemplation of that marriage.
• Divorce: a gift to the ex-spouse lapses under s.18A (ex treated as predeceasing); it is not full revocation, and any substitutional gift may take effect.
• Destruction needs act + intention together — accidental destruction, or destruction by someone unauthorised, does not revoke.
• Republication by codicil can validate or re-date dispositions — watch the s.24 and s.15 (witness-beneficiary) interactions.