Construction of a revocation clause in a will: Representation of Universal Trust Corporation [2014]JRC163

Introduction

In Representation of Universal Trust Corporation [2014]JRC163 the Royal Court confirmed that in construing a will it will aim to ascertain and give effect to the intention of the testator.

Facts

The testator died domiciled in Zimbabwe but owned assets in Jersey at the time of his death.  In 1989 he had made a will dealing with his estate outside of Zimbabwe (the Overseas Will), which had subsequently been amended by codicil.  In 2010 he made a will dealing with his Zimbabwean estate (the Zimbabwean Will).

The Zimbabwean Will contained a broadly drafted revocation clause, expressed as revoking "all previous testamentary dispositions" made by the testator.  The executor of the Overseas Will applied to the Royal Court for a determination as to whether the revocation clause in the Zimbabwean Will had revoked the Overseas Will.

All but one of the beneficiaries under the wills supported the application for a direction that the Overseas Will had not been revoked.  The beneficiary who had not supported the application had not rejected it either - it was understood by the court that he travelled often and had been advised that the application would proceed whether or not the executor received a response from him.

The Zimbabwean lawyer who drafted the Zimbabwean Will also gave evidence by affidavit that the testator had been happy with the Overseas Will and had not intended to revoke it.

Decision

Although the essential validity of a will is governed by testator's domicile at death, in this case the Royal Court was able to make a finding on the face of the Zimbabwean Will.  It held that the revocation clause in the Zimbabwean Will did not revoke the Overseas Will, on the basis that:

  • The Zimbabwean Will was expressly limited to the testator's estate in Zimbabwe.
  • The Zimbabwean Will only disposed of the testator's estate in Zimbabwe.
  • It was unlikely that the testator would have wished to die intestate in respect of his overseas estate given that he had made wills dealing with all of his estate.
  • The revocation clause was limited to wills dealing with the testator's estate in Zimbabwe.

Conclusion

When including a revocation clause in a will, lawyers should consider what other wills the testator has and whether or not they are to be revoked by the new will.  However, even where a general revocation clause is included in a will, it may not revoke a previous will where the testator did not intend it to do so.

 

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