12 May 2015

When a revocation clause does not revoke


The Royal Court of Jersey was asked to decide whether a revocation clause in a Will dealing exclusively with the testator's assets in Zimbabwe revoked a previous Will dealing with the testator's overseas estate.

The testator had died domiciled in Zimbabwe, with assets in Zimbabwe and a number of bank accounts in Jersey. In 1989 the testator had made a Will expressly dealing only with his assets outside Zimbabwe ('the earlier Will'). Some years later, in 2010, he made a Will expressly dealing only with his assets in Zimbabwe ('the later Will'). However the wording in the revocation clause in the later Will was contradictory, in so far is it did not make clear whether he intended to revoke all previous wills.

'I (…) hereby declare this to be my last Will and testament for my Zimbabwean estate only. I REVOKE all previous testamentary dispositions made by me.'

The executor of the earlier Will applied to the Royal Court of Jersey for directions on how to proceed. The Zimbabwean lawyer who had drafted the later Will gave evidence that the testator had not intended to revoke the earlier Will; the testator had been expressly asked whether he intended to do so and had replied that he did not.

The Court ruled that the later Will had not revoked the earlier Will, as it was expressly limited to the testator's estate in Zimbabwe, and it only disposed of the testator's estate in that territory. Furthermore, the testator had been careful to make Wills to deal with all parts of his estate, so it was unlikely that he would intend a partial intestacy.

Having addressed the facts of the case, the court looked to the issue of jurisdiction, and followed its own decision in the case of Hawksford Executors Ltd (in which Withers advised the successful charity beneficiaries). The Court decided that it did have jurisdiction to hear the matter because the intention of the testator was clear enough to leave no room for doubt. It was evident from the face of the later Will that the testator had not wished to revoke his earlier Will, which dealt with a different part of his estate. Therefore, the Court was content to make a finding as to the testator's intention on the basis of construction, and recourse to private international law to determine which system of law should decide the matter was not necessary.

Click here to see the judgment.

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Category: Article