Revocation by later will

A testator died in 2016 resident and domiciled in England and Wales leaving an English will to deal will all real and personal property wheresoever situated and his estate was administered on that basis.

Two years later the clients contacted us again and said that they had found further assets in Hong Kong together with a Hong Kong Will signed later than the English will. The Hong Kong will contains express words of revocation to revoke ’ all former wills and testamentary dispositions at any time made by me…’. The Hong Kong will disposes solely of a Hong Kong property and nothing else.

My first thoughts were that the Hong Kong will revokes the earlier English will and therefore the deceased was intestate with regard to his estate in England and Wales. However a quick look at Williams on Wills suggests that the revocation clause may not be conclusive if the two wills are dealing with different assets in different jurisdictions and quotes a case of Begin v Bilodeau [1951] SCR699

Do forum members agree that the later Hong Kong will does not revoke the earlier English will and therefore I don’t have to apply to revoke the grant of probate obtained by proving the English will?

Paul Lowery
Boyes Turner

It sounds to me as though the Hong Kong draftsman might have either misunderstood their instructions, or omitted words in error (although, of course, the testator might have fully understood the effect of the global renunciation clause).

If possible, the Hong Kong will file should be obtained and the instructions verified.

I do not know if rectification is available in Hong Kong, or the likely costs of such an application if that remedy might be available.

I suggest it would be appropriate to consult chancery counsel, who can advise both on the possibility of rectification and the potential application of the doctrine of dependent relative revocation. Depending on the value of the non-Hong Kong estate and the difference in how this would be distributed between intestacy and the terms of the English will, counsel might recommend an application to court to protect the executors of the English will.

Paul Saunders

I don’t know anything about /Begin v Bilodeau/, but have a look at /In
the Estate of//Wayland [1951] 2 All ER 1041./ The testator made a will
in England which contained an apparently wide revocation clause but the
will dealt only with “my estate in England”. The Court construed the
revocation clause narrowly to refer only to wills which also dealt with
English property and so it did not revoke an earlier Belgian will
dealing only with Belgian property and both wills were admitted to probate.

You might also refer to /Gladstone v Tempest (1840) 2 Curt 650 at 663:
/“Generally speaking there is no doubt that by a general clause of
revocation there is a revocation of all priory testamentary acts. But it
has been over and over again laid down that probate of a paper may be
granted of a date prior to a will with a revocatory clause, provided the
court is satisfied that it was not the deceased’s intention to revoke
that particular legacy or benefit”.

Michael Dew

A more recent example is Benjamin v. Bennett and others BLD 2102070700, in which the Barbados court held that, notwithstanding the global revocation clause, the claimant had satisfied the onus of proof and established that the deceased had not intended to revoke the English will by the Barbados will, and that he had intended to deal only with his property in Barbados by the Barbados will.

As indicated in thither responses, the essential element is the intention of the testator, so that the first port of call must be to try and secure the drafter’s file to identify their instructions and, as far as possible, the deceased’s intentions.

Paul Saunders

Here’s the Begin v Bilodeau judgment:
It seems to have been very similar to Wayland in that Will 1 dealt only with Canadian assets.

donald macdonald
edinburgh university