Revocation of a will or codicil requires deliberate and often irretrievable action on the part of the testator, however at a time when domestic statute evolved to establish greater certainty, there were still doubts as to exactly what constituted ‘actual’ revocation.
Having drafted a number of wills prior to his passing, the deceased had taken the steps to remove by cutting, his signature from an otherwise intact, and wholly acceptable will. Two later wills were partially executed, however there were no witnesses evidenced, therefore they too were deemed void.
As part of a challenge by the executor, it was argued that the terms of the recently amended Wills Act 1837, namely s.34 which reads:
“…[T]his Act shall not extend to any Will made before the First Day of January One Thousand eight hundred and thirty-eight…and that this Act shall not extend to any Estate per auto vie of any Person who shall die before the First Day of January One thousand eight hundred and eighty-eight.”
Were such as to allow for the intention of the deceased to enforce the validity of the will on grounds that his signature had remained part of the will after the 1 January 1838, and that the formalities now applicable under s.20 of the 1837 Act which reads:
“…[N]o Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or by another Will or Codicil executed in manner herein-before required…or by the burning, tearing or otherwise destroying by the Testator, or by some Person in his Presence and by his direction, with the Intention of revoking the same.”
Were peripheral to the actual ‘cutting’ of the will, as opposed to tearing, thus the will was not of itself destroyed nor obliterated, but merely absent of a signature.
Having considered the somewhat elaborate choice of words employed by the executors, it was found by the court that while the use of a blade to surgically remove a signature was dissimilar to the tearing of a will, it did by effect, remove the presence of the testator’s signature, thereby destroying any chance of meeting the terms of s.20 of the 1837 Act.
It was also explained that while s.34 of the Wills Act 1837 did not take effect anytime before the 1 January 1838, any action carried out after that date would by extension, remove previous exemption from its powers, therefore the altered will now fell subject to the requirements contained therein, and was duly held to be revoked.
“[T]he signature of the testator is necessary to the validity of a will; that no will is valid without it, so that it is not only a material part, but an essential part, without which a will cannot exist.”
“[I]t would not be difficult to shew that a will might be revoked by cutting with an instrument as well as by tearing, if a corresponding effect be produced by the one act as by the other.”
“Cutting is a mode of destroying as effectual as tearing, and it appears to me that if tearing a will to this extent be a sufficient destruction of it, the same effect must be attributed to the act of cutting it…”
“I consider the name of the testator to be essential to the existence of a will, and that, if that name be removed, the essential part of the will is removed and the will is destroyed…”