INTRODUCTION

The nature of revocation

Revocation of a will, which is the converse of the initial act of making, proceeds on the broad principle of freedom of testation. The subject may be divided according to whether the revocation is voluntary or involuntary.

Voluntary revocation is determined by the intention of the testator. The basis of Roman and Roman-Dutch law was that voluntary revocation could be achieved, expressly or by implication, by a formal will or document as well as by destruction of the original will.

A will may also be revoked involuntarily, by operation of law, when certain circumstances occur. Involuntary revocation does not seem to require an act of free will or specific intention to revoke. Rather the intention to revoke is implied. Hughes explains that involuntary revocation is based on a policy of requiring a person to reconsider his or her social obligations in the light of a change in circumstances. Cases of involuntary revocation by changed circumstances include revocation by the birth of a child, revocation by subsequent marriage, revocation by divorce or annulment of marriage, and certain other forms of automatic lapsing of a will.

This chapter considers revocation by changed circumstances in the context of two mixed jurisdictions (South Africa and Scotland), one jurisdiction from the Common Law world (England), and one from the Civil Law world (Netherlands).