"Tear it up": revocation and capacity

Crew v Oakley [2024] EWHC 2847 (Ch)

by Hugh Cumber

As a matter of statute, there are only three ways of effectively revoking a valid will. First, unless the will is made "in contemplation of marriage/civil partnership" the later marriage or civil partnership of the testator will have the effect of revoking the earlier will of the testator. This occurs by operation of law and is not always intentional. It can have undesirable consequences in the common situation where a testator may wish to strike a different balance between his children of an earlier marriage and his later spouse or civil partner than is provided for by the rules of intestacy. Conceivably, a testator who suffers from impaired capacity may have the mental capacity to enter into a valid marriage but lack the capacity to execute a new will.