Angela Frances Crew & Anor v Josephine Oakley & Ors

A will may be revoked by physical destruction where the testator acts with the intention of revoking it. Complete destruction is required, but the testator may direct another person to complete the act. A positive and discernible non-verbal communication can amount to such a direction; mere acquiescence is insufficient.

The testator must have testamentary capacity, assessed under the Banks v Goodfellow criteria. Capacity is a holistic question for the court, determined from all factual and expert evidence. A solicitor’s failure to follow the Golden Rule does not itself establish incapacity. A sufficiently lucid interval may support a valid revocation despite fluctuating delirium.

The claim concerned the estate of Carry Marion Fanny Keats. The claimants were executors and beneficiaries under Carry’s 2020 will. Josephine Oakley, Carry’s sister, would inherit the residuary estate on intestacy.

During a hospital attendance, Carry tore approximately three quarters of the will. Her solicitor completed the tearing after Carry nodded in response to an offer of assistance. The solicitor considered Carry capable of revoking the will but unable shortly afterwards to give coherent instructions for a replacement will.

The issues were whether the will had been sufficiently destroyed under section 20 of the Wills Act 1837, whether the solicitor had acted under Carry’s authority, whether Carry had the requisite intention and capacity, and how the court should treat an unchallenged expert report under Tui v Griffiths [2023] UKSC 48.

1. Revocation by destruction. The physical act was complete. Carry tore most of the will herself and, when she could not continue, positively authorised her solicitor to complete the tearing. The solicitor’s assistance was part of a continuous act and did not amount to an interruption.
2. Authority to complete the act. Under section 20 of the Wills Act 1837, destruction by another person requires the testator’s direction. The court applied the requirement of positive and discernible communication identified in Barrett v Brem [2012] EWCA Civ 52. A direction may be non-verbal. Carry’s direct eye contact and nod in response to the solicitor’s offer were a positive instruction, not mere acquiescence.
3. Intention. Carry had been expressly advised that tearing the will would exclude the claimants and leave her intestate, with Josephine inheriting. Her conduct, previous instructions and completion of the tearing established the intention to revoke. The intention would also have been inferable from the nature and extent of the destruction.
4. Capacity. Testamentary capacity was assessed by the court under the four limbs in Banks v Goodfellow (1870) LR 5 QB 549. The court treated the assessment as holistic, considering the evidence of the attending solicitor, the medical evidence, the hospital records and the surrounding circumstances. The expert’s opinion was important but not determinative: capacity remained a judicial question, as explained in Key v Key [2010] EWHC 408, Simon v Byford [2014] EWCA Civ 280 and Leonard v Leonard [2024] EWHC 321 (Ch).
5. The evidence established a sufficiently lucid interval. Carry understood the nature and effect of revoking the will, understood her property in the relevant subjective sense, and had weighed the claims of the potential beneficiaries. The failure to follow the Golden Rule did not prove incapacity. The restrictions arising from the absence of cross-examination of the expert did not make his evidence determinative; under Tui v Griffiths [2023] UKSC 48, the court permitted limited criticism through the Part 35.6 questions and retained responsibility for evaluating the totality of the evidence.
6. The will was therefore revoked under section 20 of the Wills Act 1837. The claim was dismissed and judgment was given for Josephine on her counterclaim.

First-instance decision. The judgment does not state any prior appellate decision in the same proceedings.