The recent Court of Appeal ruling in Sangha v Sangha [2023] EWCA Civ 660 examines general revocation clauses and the circumstances where they are not effective to revoke earlier wills. It also explores the requirements for due execution of a will under s.9 of the Wills Act 1837 as amended ("Wills Act").
Hartar Singh Sangha ("Hartar") died in 2016, leaving behind two families. The first family consisted of his first "wife", Diljit, their son Sundeep, and their daughter Mandi. The second family comprised his second "wife", Jaswinder, and their son Harbiksun. He also had a surviving sister, Jagpal.
Hartar left a considerable estate with assets in both the UK and India. During his lifetime, he made four wills. The dispute related to the last two as follows:
- 2007 will: Indian and UK assets left to Jaswinder, or failing her, to Harbiksun.
- 2016 will: Indian assets divided into four equal shares between Sundeep, Diljit, Harbiksun, and Jagpal. There was no mention of Hartar's English assets in this will.
The 2016 will included a general revocation clause, which stated, "This is my last and final will and all such previous documents stand cancelled".
Did the revocation clause in the 2016 will revoke the 2007 will completely or only in relation to Hartar's Indian assets?
The Court of Appeal disagreed with the view of the Deputy Judge of the High Court that the revocation clause in the 2016 will only revoked the part of the 2007 will that dealt with Hartar's Indian assets. It stated that a will's general revocation clause is strong evidence of the testator's intention to revoke previous wills. Challenging it requires a "heavy burden" of proof. This burden was met in Re Wayland, where the testator's revocation clause conflicted with other provisions in the will. Similarly, in Benjamin v Bennett, the testator's general revocation clause was not applied because his later will was explicitly titled "Barbados", and only covered his Barbadian assets.
The Court of Appeal concluded that the 2016 will effectively revoked the 2007 will in full.
Presumption against intestacy
The question remained as to how to allocate the English assets and whether the presumption against intestacy applied. This presumption argues a testator is unlikely to want to die intestate, and that courts should therefore lean against a construction which creates intestacy (see Theobald on Wills (19th edn, 2021) §26-061:). The Court found that it was likely that Hartar had believed that most of his English estate had been dealt with already, as he had transferred properties into his and Jaswinder's joint ownership. The Court ultimately wasn't convinced the circumstances were strong enough to negate the presumption against intestacy and held that the intestacy rules apply to Hartar's English assets.
If it is held that the 2007 will was not wholly revoked, did it meet the requirements for due execution?
The Court expressed its obiter views on the requirements for due execution of a will. The 2007 will was signed by Hartar in the presence of one witness. By the time the second witness arrived, the will was already signed by Hartar and the first witness. The Court held that for the requirements of s.9 of the Wills Act to be met: Hartar must have signed either in the presence of both witnesses together, or must have acknowledged his signature in the presence of both together; and the first witness must have acknowledged their signature in Hartar's presence after Hartar had acknowledged his signature to both witnesses. The Court did not resolve the issue of whether the 2007 will had been validly executed given its decision on the revocation clause in the 2016 will.
Conclusion
This case provides an intriguing analysis of how the Court interprets general revocation clauses, which may initially appear decisive. The judgment serves as a compelling reminder that a comprehensive assessment of the testator's intentions is pivotal in navigating the interpretation of general revocation clauses and determining the applicability of the presumption against intestacy. It also provides a helpful analysis of the requirements for valid execution of a will in accordance with s.9 of the Wills Act.