Hoare Trustees v Jaques & Ors

Under section 22 of the Wills Act 1837, a revoked will may be revived by a later codicil if the codicil, read as a whole, shows the testator’s intention to revive it with reasonable certainty. An express statement of revival is unnecessary. That intention may be shown by reference to the earlier will together with provisions that purport to amend it, particularly where the drafter acted on the basis that the earlier will remained operative. The solicitor’s relevant intention may be attributed to the testator where the codicil was prepared in accordance with the testator’s instructions and executed by the testator.

The claimant trustees sought probate in solemn form of a will dated 12 August 1999 and two codicils dated 14 January 2000 and 25 November 2004. Between the codicils, the testatrix had executed a second will dated 16 August 2000, expressly revoking the earlier will and first codicil.

The second codicil referred to the earlier will, incorrectly dated, and increased a legacy under that will. The solicitors who prepared it were unaware of the intervening will. The issue was whether the second codicil revived the earlier will and first codicil, thereby revoking the second will. There was no remaining dispute about testamentary capacity or due execution.

1. The claim was allowed. Probate was granted in solemn form of the will dated 12 August 1999 and the two codicils.

2. Section 22 of the Wills Act 1837 requires the later testamentary instrument to show an intention to revive the revoked will. Following In the Goods of Steel (LR 1 Probate 575), the intention may appear from express words, from a disposition inconsistent with any other intention, or from other language conveying the intention with reasonable certainty.

3. The second codicil expressly described itself as a codicil to the earlier will and purported to vary a provision in that will. The evidence showed that the solicitors had acted on instructions directed to the earlier will and that the testatrix intended to alter the legacy contained in it. Those circumstances were inconsistent with an intention that the intervening will should remain operative.

4. The principle was supported by In the Goods of Chilcott ([1897] Probate Reports 223), where a codicil prepared without knowledge of an intervening will revived the earlier will, and by the reasoning quoted from In the Goods of Stedham (6 Probate Division 205). The solicitor’s intention, in preparing a codicil by reference to the earlier will, was attributable to the testatrix.

5. The only possible conclusion was that the earlier will and first codicil were revived and the intervening will revoked. Capacity and due execution were established and were not in issue.

not stated in the judgment.