What is revoking a will?
Cancelling or revoking a will is a common practice. Most people will make several wills in their lifetime to reflect their changing wishes as their circumstances and assets change or perhaps to reflect updates to the relevant tax regime. It is almost always prudent to expressly revoke your former will in the new will. Normally this is done by an express statement saying “This is my last will and testament and I revoke any and all former wills prepared by me”.
Sometimes however you might want to make a new will without revoking the old one. Most commonly this occurs because you have assets in different countries which you want dealt with differently. For example, many countries have rules as to forced heirship i.e. the government says what you have to do with your assets. Normally this involves a requirement to leave assets to your spouse or children. Sometimes these rules favour male offspring over female (this was the case in the UAE until February 2023 and remains the case in Qatar). In fact, the UK is in the minority having complete testamentary freedom. You might therefore wish to have your assets in the UK dealt with differently, perhaps to ‘even the score’ between your children.
In those circumstances, you would commonly have a UK will which deals only with your UK assets and a will in whatever country your other assets are held, which deals with those assets. Those wills would need to be carefully prepared to ensure that:
Both are valid, and neither revokes the other; and
Between the two all of your assets are covered – otherwise you may find yourself being ‘partially intestate’.
The case of Sangha v Sangha
Revocation rules are perhaps a little complicated, but recent case law shows the importance of knowing whether or not your previous wills have been revoked. Judgment for the second appeal in the case of Sangha v Sangha has recently been handed down by the court of appeal after 7 years of very sad and bitter litigation between members of the Sangha family.
The facts of the case, briefly, are:
Mr Hatar Singh Sangha was a wealthy man with substantial assets both in England and India. The majority of his assets (around £30 million) were in India but his English assets were certainly nothing to be sniffed at, being worth more than £11 million.
In 2007 Mr Sangha executed a will which dealt with all of his worldwide assets. In 2016 he executed a will which only dealt with his assets in India and stated that it revoked “all such previous documents”.
Mr Sangha died in 2016 leaving two families, his first wife Diljit, their son Sundeep, and their daughter Mandeep, and his second wife, Jaswinder and their son Harbiksun. He referred to both as his ‘wives’ and there is a dispute (unresolved in these proceedings) about whether Mr Sangha was legally married to Diljit or Jaswinder.
The 2007 will left all of Mr Sanga’s assets to Jaswinder or if she died before him, to Harbiksun. Jaswinder and Mr Sangha had substantial jointly owned assets in the UK - in fact at one point Mr Sangha only owned about £1million of solely owned UK assets (yes I know that's probably not the right use of "only"). However at some stage he was made bankrupt and although this was swiftly overturned, the beneficial interest on the jointly owned assets was severed and would therefore pass under his will, rather than by survivorship to Jaswinder.
The 2016 left Mr Sangha’s Indian assets equally between Diljit (his first wife), Sundeep and Harbiksum (his two sons, one from each marriage) and to Jagpal (his sister). He left nothing to his daughter, Mandeep, in either will on the basis that she “broke his heart” (it is not clear what she had done to deserve this).
The story of Mr Sangha’s life is interesting (and it is worth reading the judgment for that alone) but the upshot was that by his death, he had two families, no one is sure which, if either, of his marriages were legal, and substantial assets in the UK and in India. His two families bitterly disputed (at least initially) the validity of both the 2007 and 2016 wills, with allegations of conspiracy and forgery – again, on these points the judgments of both the High Court and Court of Appeal are well worth a read.
Despite the allegations of invalidity levied against both documents, the court found that both the 2016 and 2007 wills were valid which left the question as to whether the 2016 will did revoke the 2007, and if so, what were to happen to Mr Sangha’s estate in England which was not dealt with by the later will.
Whether the 2007 will was revoked.
The 2016 will provided that “This is my last and final WILL and all such previous documents stand cancelled”. This is perhaps not the usual wording you would see in a will prepared in the UK, and the question was whether this was sufficient. If the will did revoke the 2007 will this left some difficulties, because the 2016 made no provision for Jaswinder (despite Mr Sangha considering her to be his wife), the will did not appoint any executors, make any provision for his debts to be paid, and as above, it did not deal with his UK assets.
The High Court in the original claim found that the wording of this could not be clearer and in the absence of any other evidence that Mr Sangha intended anything other than to revoke his 2007 will, the situation was obvious. The 2007 will was revoked, the 2016 will prevailed, and Mr Sangha was partially intestate with his UK assets passing under the intestacy rules. This left room for secondary litigation about who was entitled to those assets because the intestacy rules provide a statutory legacy for the spouse and then balance of the assets split between the spouse and children – the parties would therefore need to know whether Diljit or Jaswinder was Mr Sangha’s legal wife.
However there were not one but two appeals after the initial judgment.
The first appeal to the Deputy Judge in the High Court (a Judge more senior than the Deputy Master who heard the trial in the first instance) was made by Jaswinder. She asked the court to find that the 2016 will had only replaced the 2007 will in respect of the Indian assets and that the UK assets passed under the terms of the 2007 will (i.e. to her and her son).
The Deputy Judge found in her favour. He decided that there was evidence that Mr Sangha did not intend to revoke his 2007 will in respect of his UK assets and instead that his reference to ‘such documents’ was meant to mean ‘documents relating to my Indian assets’. The upshot was that the Indian assets were split between Diljit (who by this time had died – meaning those assets went to her children, Sundeep and Mandeep), the two sons (Sundeep and Harbiksun), and Jagpal. The English assets went to Jaswinder and Harbiksun. This, perhaps, seems like a fair outcome. There was some evidence that Mr Sangha had not understood the effect of his bankruptcy on his jointly owned UK assets and perhaps that he believed almost all of these would go to Jaswinder even if he did not have a UK will.
Sundeep and Mandeep – who would have stood to inherit the majority of the UK assets under the intestacy rules if, as they believed, Diljit was Mr Sangha’s legal wife - made a further appeal, which was heard in the Court of Appeal.
There were a couple of issues dealt with in the Court of Appeal, however the main one was the matter of revocation. The hearing focused primarily on whether Mr Sangha intended to revoke all of his wills or only his wills to the extent that they dealt with the Indian property. The barristers involved referred to other cases where unclear revocation clauses were taken to mean that only previous wills were only revoked to the extent that they dealt with property in that country. However the Appeal Judge found that the cases referred to were much clearer than in Mr Sangha’s case and involved wills which were expressed to only deal with assets in one country. Mr Sangha’s 2016 will did not do that – it simply made no mention of the English assets. Indeed, from the little evidence there was before the court, there was even some suggestion that the failure to include the English assets was an oversight of which Mr Sangha was aware rather than a deliberate exclusion because he believed these assets to be covered by another will.
The Judge stated that there was very little evidence about what Mr Sangha intended by the revocation clause. Partly this is because when the oral evidence was given at the first trial, the focus was whether the wills were valid, not what was meant by the wording of the revocation clause. The Judge commented that this was not the fault of Counsel - it would have seemed an odd position for Counsel to adopt to question what was meant by the wording of a will they were arguing was never valid in the first place!
The primary position on the plain and natural reading of the words was that the 2016 will acted to revoke all former wills. In the absence of little, if any, evidence that Mr Sangha intended anything different, the wording was taken at face value and the Judge concluded that the 2016 will revoked the 2007 will in its entirety.
The case of Sangha v Sangha goes to show that, when it comes to wills, wording should be exact and carefully thought through. Given the value of the estate, the parties to the litigation may think the legal costs worthwhile but most estates are not worth more than £40 million and would significantly, if not entirely, depleted by an argument of this scale.
If you’re reading this blog, I presume that you have not yet died. If you are concerned about your own will and assets, you have the opportunity to check your wills and ensure that they do what you want them to do (and change them if they don’t). In your case, the takeaways from this case should be:
Always have a professionally drafted will. Given the nature of the initial argument, Mr Sangha’s Indian lawyer was never actually asked what Mr Sanga’s intention was. However generally speaking professionals will keep detailed and accurate notes about what you have discussed with them and what your intentions are when preparing your will. Often that information can stop a case like this in its tracks before it ever reaches a court;
If you have assets in other jurisdictions, be very clear about whether your will is dealing with those or not;
Even if you are not dealing with foreign assets, you should always tell your solicitor about them when they are drafting your will. That way your solicitor can ensure that they are fully excluded;
If you have previous wills which you do not what to revoke, you should be very clear with your lawyer about this (and preferably provide a copy) so that these can be dealt with in your new will; and
If you do wish to revoke your former will(s), this should also be made abundantly clear in your new will.
If it’s too late and you’re a beneficiary or executor left with a will which may or may not revoke the previous wills, you have options. If you think a will is invalid, you can bring a will validity claim. For more on will validity claims, see here.
If you’re the executor of a will and are unsure if it has been revoked, you can apply to the court for directions or an interpretation of the will. For more information on claims for interpretation, see here.
If you have any questions about challenging the validity of a will, please contact Charlotte Braham by email or on 01494 893529.