# Newer Will destroyed. Does earlier will kick in?



## Laramie (3 Oct 2013)

My mother was left a property by her sister when she died. However just before my mother's sister died they had a row and my mother's sister destroyed her will. My mother had a photocopy of the will.
When going through my mother's sister's effects I came across an earlier will of my mother's deceased sister.

Does the earlier will now rank as the original will and does the photo copy of the later will have any bearing?


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## dereko1969 (3 Oct 2013)

I thought a will had to be witnessed and a copy kept by an independent party, but I could well be wrong on this.


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## mf1 (3 Oct 2013)

This would be a standard clause in any will. 

"I HEREBY REVOKE all former wills and previous testamentary dispositions heretofore made by me. "

So, in this instance, it is very likely that the later will revoked the earlier will. And when the later will was destroyed, that was a clear revocation of that will. So the likelihood is that there is no will in existence and that the sister died intestate - no will and benefits follow the rules of intestacy. 

And, yes, a will must always be witnessed and it would be good practice ( but no legal obligation ) to have someone keep a copy. 

mf


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## TheFatMan (3 Oct 2013)

Hi MF1

isnt there an inherent paradox in your last response?

If the later will is destroyed its instruction revoking the earlier will is also destroyed.
You can't have your cake and eat it too. 
Either all of the later will is valid or none. 
Its revoke clause cant be valid.

So OP is correct the earlier will takes effect?


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## Laramie (3 Oct 2013)

mf1 said:


> And, yes, a will must always be witnessed and it would be good practice ( but no legal obligation ) to have someone keep a copy.
> 
> mf



Does this copy have an equal standing as the original?


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## Joe_90 (3 Oct 2013)

My understanding was that at the point the new will was written it revoked the previous will always and forever, not until you tear up the new will.


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## mf1 (3 Oct 2013)

Laramie said:


> Does this copy have an equal standing as the original?



The copy is a copy of a destroyed will. It has no legal standing. So- is there a revocation clause in the destroyed will? If yes, there is no will and the deceased died intestate. Or no? Then it may be that the earlier will has not been revoked. 

You need legal advice personal to the circumstances.

mf


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## WizardDr (5 Oct 2013)

Extract from Succession Act 1965

85.—(2) Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

It seems to me that the burning of the Will would see the earlier Will to be valid - but as MF has pointed out the circumstances of the particular situation could alter this


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## Padraigb (6 Oct 2013)

The burning of the second will does indeed make it invalid.

The court might accept the photocopy of the second will (supported by personal testimony) as evidence that the deceased had a clear intention that the earlier will be revoked - and I cannot imagine that the court would re-instate a will that had been revoked.

It looks to me like an intestacy.

[I don't expect mf1 to give erroneous advice often, and I don't think this is one of those rare events.]


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## WizardDr (8 Oct 2013)

@Padraigb surely the burnt will is in fact revoked as per s85.
How could it then be an intestacy if there is an older - now valid - will?
The Act seems pretty clear.


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## Padraigb (8 Oct 2013)

I think the making of the second will revoked the first one, and the act of burning revoked the second one. But I don't think the revocation of the first will can itself be revoked. My guess is that the court would take that view.


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## j26 (8 Oct 2013)

Destruction of a later will does not revive the earlier will - Section 87, Succession Act, 1965

With regard to the destroyed will - it hadn't actually been revoked as it doesn't seem it was destroyed by the person who made the will, or with her authority.  As such, it's possible that a judge could accept the copy as secondary evidence of the will.  However, it's more likely that the estate will be treated as intestate.


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## Bronte (9 Oct 2013)

mf1 said:


> The copy is a copy of a destroyed will. It has no legal standing. So- is there a revocation clause in the destroyed will? If yes, there is no will and the deceased died intestate. Or no? Then it may be that the earlier will has not been revoked.


 
That's interesting, what if the testator tearing up the second will had the intention that the first will would stand?  A lot of people might assume that.

Best thing of all would have been to destroy the first will when creating the second will.


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## Laramie (9 Oct 2013)

My mother tried to have the photo copy of the newer will entered for probate but this was refused. She went to the high court to appeal and lost her case. Her sister's estate was then divided among various relatives. My father who was the named executor on the photocopy continued acting the executor role and traced down as many relatives as he could find thus diluting my mother's share of the eventual proceeds.
At this stage nobody knew about the earlier will that existed that I have now discovered going through old papers.
As far as I can make out the earlier will left all of the estate to another brother who had died earlier.
So am I right in saying that my mother would have inherited the estate as the next of kin  anyhow if the original will had been allowed to stand?


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## Woodie (9 Oct 2013)

I think that the advice of MF1 and the court is clear in the case and reflects the law.  Your mother's sister revoked the previous will by creating a new will and then in destroying that will and not replacing it died intestate.  The case is closed IMO.


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## mf1 (9 Oct 2013)

Laramie said:


> My mother tried to have the photo copy of the newer will entered for probate but this was refused. She went to the high court to appeal and lost her case. Her sister's estate was then divided among various relatives. My father who was the named executor on the photocopy continued acting the executor role and traced down as many relatives as he could find thus diluting my mother's share of the eventual proceeds.
> At this stage nobody knew about the earlier will that existed that I have now discovered going through old papers.
> As far as I can make out the earlier will left all of the estate to another brother who had died earlier.
> So am I right in saying that my mother would have inherited the estate as the next of kin  anyhow if the original will had been allowed to stand?



Oh what a tangled web.....................

It would have been helpful if you had recounted all this at the start.  

And the best advice you would have been given would have been for her to go and talk to her legal people. But I think it is all clutching at straws.

mf


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## Laramie (9 Oct 2013)

mf1 said:


> It would have been helpful if you had recounted all this at the start.



It was interesting to hear a number of different answers to the original question. I understand that some of you who replied are involved in the legal business. I would have thought that this question would have arisen somewhere in the past and in fact might be a quite common occurrence?

I only found the original will recently. My mother died some years ago so it's all over and done with. 

I agree with Bronte's point on this. Someone might change their mind and think that the old Will will now stand if they destroy the new will.

 If nobody knows that a newer will existed and ends up being destroyed is it not logical to assume that the older will be taken as the current Will because nobody knows that a newer will was ever made?


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## Bronte (10 Oct 2013)

Laramie said:


> My mother tried to have the photo copy of the newer will entered for probate but this was refused. She went to the high court to appeal and lost her case.
> 
> 
> So am I right in saying that my mother would have inherited the estate as the next of kin anyhow if the original will had been allowed to stand?


 
You've completely changed the story. And you have the answer, the photocopy was not allowed by both the Probate office and the High Court no less (ouch on costs)

In relation to your second query, it depends on who died in what order and whether they had children.  

Anyway all of this is pedantic and should be forgotton about.


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## Laramie (10 Oct 2013)

Bronte said:


> You've completely changed the story.



Can you clarify how I have changed the story? 

 I thought that the whole sequence of events was very interesting and how it turned out in the end and how I could learn from it.


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