When Final Wishes Don’t Go to Plan - Why destroying your current will may leave you with no will at all

When a person makes a new will, it will usually revoke any earlier will. However, if that later will is later lost or intentionally destroyed, the legal position is not as straightforward as many people assume. 

Although revocation and revival are closely related, they have distinct legal consequences. While a later will may be revoked in several ways, that does not, of itself, revive an earlier will. Unless the statutory requirements for revival are satisfied, the deceased may be left with no valid will, with the result that their estate is administered under the rules of intestacy.^[1]

The consequences of this distinction can be significant. A mistaken assumption about the effect of revoking a later will may result in an estate being distributed in a way that does not reflect the deceased's intentions. For that reason, anyone making, updating or administering a will should understand how revocation and revival operate.

How can a will be revoked?

The Succession Act 2023 (SA) (Succession Act) sets out the ways in which a will may be revoked. The most common method is by executing a later will containing an express clause revoking all previous wills and testamentary documents. This is standard drafting practice and provides certainty that the later will is intended to replace earlier testamentary instruments.

Even where a later will does not contain an express revocation clause, an earlier will may still be revoked by implication. If two wills are inconsistent, the later will revokes the earlier will to the extent of the inconsistency. Where the documents are wholly inconsistent, the earlier will may be revoked in its entirety.^[2]

A will may also be revoked by destruction. Section 17 of the Succession Act provides that a will may be revoked where the testator, or another person acting in the testator’s presence and at their direction, burns, tears or otherwise destroys the will with the intention of revoking it. The act of destruction alone is not sufficient, it must be accompanied by an intention to revoke the will.^[3]

What happens if the latest will cannot be found?

A different issue arises where the original will cannot be located after the testator’s death. Although the Succession Act does not expressly address lost wills, the common law recognises a rebuttable presumption that, where an original will was last known to be in the deceased’s possession and cannot be found after death, the deceased destroyed it with the intention of revoking it.^[4]

Importantly, this is only a presumption. It may be displaced by evidence showing that the will was accidentally lost, misplaced or destroyed without any intention to revoke it. The Court will consider all relevant circumstances, including where the will was kept, who had access to it, whether a copy exists and any evidence of the deceased’s continuing testamentary intentions.^[5]

Does an earlier will automatically revive?

The short answer is, no.

Section 21 of the Succession Act provides that a revoked will is revived only by re-execution of the earlier will or by the execution of a later will or codicil showing an intention to revive it. The word ‘only’ is important. Revival does not occur automatically and cannot arise merely because the testator believed that an earlier will would again become effective.^[6]

The distinction was illustrated in Re Allan (dec’d)^[7] where the deceased made a will in 1997 and later made a 2003 will that revoked it. The deceased later destroyed the 2003 will believing that doing so would revive the 1997 will. The Queensland Supreme Court held that, although the later will had been revoked by destruction, the earlier will remained revoked because the statutory requirements for revival had not been satisfied. The deceased therefore died intestate. Although decided under Queensland legislation, the relevant provisions are materially similar to those applying in South Australia.

By contrast, Slack v Rogan^[8] demonstrates that an earlier will can be revived where the statutory requirements are met. The Court admitted an informal document which was intended to have testamentary effect, and which demonstrated an intention to revive an earlier will. The document operated as a codicil, with the result that the earlier will was revived and taken to have been executed on the date of revival. The result turned on the existence of a testamentary document evidencing the necessary intention to revive the earlier will, rather than simply the disappearance or revocation of the later will.

Why does the distinction matter?

The consequences of getting this wrong can be significant. A person may destroy their current will believing that an earlier will will once again govern the distribution of their estate. If the earlier will has not been formally revived, however, there may be no valid will at all.

In that event, the estate may be distributed under the statutory rules of intestacy rather than in accordance with either of the deceased’s wills. This may produce a result that differs substantially from the deceased’s intentions. It may also delay the administration of the estate, increase costs and give rise to disputes between family members or beneficiaries.

The same risks arise where a will cannot be found after death. Before assuming that the will was revoked, it may be necessary to investigate the circumstances in which it disappeared and whether sufficient evidence exists to rebut the presumption of revocation. That process may involve obtaining evidence from the solicitor who prepared the will, family members, witnesses and others who knew where the document was stored or had discussed the deceased’s intentions.

Practical steps

A person who wishes to change their testamentary arrangements should ordinarily execute a new will prepared for that purpose, rather than attempting to alter the position by destroying an existing document. If the intention is to reinstate an earlier will, the revival must comply with section 21 of the Succession Act. Simply destroying the current will is unlikely to achieve that outcome.

It is also important to keep the original will in a secure and identifiable location and to ensure that the executor, or another trusted person, knows where it is held. Where a solicitor retains the original, the testator should keep a record of the firm’s details and inform the executor accordingly.

After a person dies, those administering the estate should obtain advice before concluding that a missing will has been revoked or that an earlier will has revived. The legal position will depend on the circumstances, the available evidence and whether the statutory requirements have been met.

Key takeaways

Revocation and revival are separate legal concepts. While a later will may revoke an earlier will, revoking or losing the later will does not automatically bring the earlier will back into effect.

In South Australia, a revoked will can be revived only in the ways prescribed by section 21 of the Succession Act. Unless those requirements are satisfied, the earlier will remains revoked, and the estate may be administered under the rules of intestacy.

Anyone considering revoking, replacing or reinstating a will should ensure that the appropriate legal steps are taken. Obtaining advice before acting can help ensure that the intended testamentary arrangements are effective and reduce the risk of uncertainty or dispute after death.