Revoking a Will: Key Lessons from Crew v Oakley on Mental Capacity and the Validity of Will Revocation by Destruction
3rd December, 2024
The recent case of Crew v Oakley highlights the importance of estate planning and raises questions about whether a Will can be contested after it has been destroyed.
The case centred on whether the deceased, Carry Keats, had sufficient mental capacity to revoke her Will, and whether the act of tearing it in half was sufficient to amount to a valid revocation by destruction.
This landmark decision is particularly instructive for legal professionals and individuals planning their estates. Below, we explore the case and its key lessons.
Case Overview
Carry Keats died at age 92, leaving an estate worth around £800,000. In 2020, she had executed a Will which left the majority of her estate to her 5 cousins once removed, including Angela and David Crew, whom she also appointed as the executors of the Will. Carry did not include her sister Josephine Oakley in this Will, which Carry said was because she had loaned a lot of money to her sister over the years which her sister did not repay, causing ‘deep divisions’ between the sisters.
Carry and the Crews had a ‘serious falling out’ in late 2021 due to disagreements about Carry’s care. Carry accused the Crews of threatening to place her in a nursing home if she suffered another fall. Following this conflict, Carry instructed her solicitors that she wished to change her Will. It was noted by Carry’s solicitor in her attendance note that Carry ‘clearly had full capacity’. However, Carry was subsequently hospitalised and no new Will was executed.
Carry’s solicitor visited her at the hospital and reassessed her, confirming that she still had the capacity to make decisions. The solicitor explained that destroying her existing Will would revoke it, resulting in her estate passing to her sister Josephine under the rules of intestacy, with her cousins no longer benefitting. Carry confirmed she wished to revoke her Will, and tore it in half with the help of her solicitor due to her physical frailty. Carry died intestate a few weeks later.
The cousins brought a claim which argued that Carry lacked testamentary capacity and did not destroy the Will herself. Josephine argued that Carry had intentionally revoked the Will to pass her estate to Josephine on intestacy.
The Court found in favour of Josephine, ruling that Carry had both the requisite capacity and intention to revoke the Will, and the act of tearing it – completed with her solicitor’s assistance – met the legal requirements under the Wills Act 1837.
Key Legal Insights
- Testamentary Capacity: The Court applied the Banks v Goodfellow test, focusing on Carry’s ability to understand her actions and their consequences during a lucid interval. This highlights the importance of professional assessments and thorough documentation when capacity is in question.
- Revocation by Destruction: The case confirmed that partial destruction can suffice if coupled with clear intent and completed under appropriate guidance. Solicitor involvement was crucial in demonstrating both compliance with the law and Carry’s intentions.
- Expert Evidence vs Solicitor’s Testimony: The Court prioritised detailed, contemporaneous solicitor notes over expert evidence based on retrospective analysis, reinforcing the value of robust legal documentation.
Lessons
- Early Planning: Avoid last minute changes to your estate plan. Preparing a professionally drafted Will ensures clarity and reduces disputes.
- Professional Involvement: Seeking legal advice is critical, especially in situations where capacity or intent might later be challenged. Given the value of what is often at stake in these types of cases, it is better to get legal advice at an early stage, to ensure that everything possible is done to avoid costly legal action, and that your position is protected should such action be necessary.
- Document changes properly: Any alterations to a Will must comply with legal standards. Partial or improper destruction can lead to contentious litigation.
If you need advice on Will disputes please contact a member of our contentious probate team at inheritance.disputes@wardhadaway.com.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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