Much has been written about the importance of making one’s will; after all it is an important part of estate planning and management. A will allows the maker- the testator — to put his or her affairs in order before his or her inevitable demise. But what happens when a testator dies leaving more than one will? This is not at all uncommon and three of the most common instances when this occurs are:

Firstly, where the testator makes a second or otherwise subsequent will without revoking the first. Very often, a testator makes a subsequent will where he or she has, since making the first will, accumulated more assets.

Most wills contain an express revocation clause which indicates that the testator intended to revoke all previous wills. This revocation clause is often expressed in this way: “I…hereby revoke all former wills and testamentary dispositions made by me and declare this to be my last will and testament”. In the absence of this or a similar clause or in the absence of one of the two other methods of voluntarily revoking a will, then the subsequent will (which is known as a codicil) should be read together with the first to determine the testator’s intentions and will be as valid as the first.

Of course a testator may make a second will where he or she has changed his or her mind about how to dispose of his or her assets. In those circumstances, the subsequent will should clearly revoke all pre-existing wills in the form mentioned above. In the absence of a revocation clause, the testator may also voluntarily revoke his or her will either by some other form of writing which complies with the requisite formalities set out in the Wills Act, or by burning, tearing or otherwise destroying the pre-existing will or having someone destroy it in his or her presence where he or she has an intention to revoke it. In that case, only the subsequent will should be taken as an indication of the testator’s intention as the previous will is no longer valid.

Secondly, where the testator makes a will before marriage then makes another after his or her marriage to include his or her new spouse. In this case, the law makes it clear that the second will is the only valid one, as under the Wills Act a marriage revokes all pre-existing wills. The marriage must of course be a valid one to have that effect on the pre-existing will or wills.

Thirdly, where two or more persons come forward after the death of the testator, each claiming to be in possession of a valid will – but with each will disposing of the testator’s assets in contrary ways. The existence of two seemingly valid wills (where one does not revoke or refer to the other) often raises the presumption of fraud. Where this occurs, those seeking to prove the validity of a will should file a probate claim in the Supreme Court to seek a decree pronouncing for or against the validity of the alleged will.

Where a probate claim is filed, the Court is likely to take into account the following:

i. Who had custody of each will? For example, whether the will was presented by an executor or by some other person claiming an interest under the will;

ii. The date of the execution of each will (to determine which pre-existed the other);

iii. Whether each will complies with the formalities of the Wills Act, that is, whether each of the respective wills is signed at the foot or end by the testator or some other person in his presence and by his direction with such signature being made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

iv. Whether the signature of the testator can be verified.

The Court will of course examine all the evidence before it in determining which will is valid, if both are, and whether one or both wills should be given effect to.

Corrine Henry is an associate at Myers Flethcher & Gordon and a member of the firm’s Property Department. Corrine may be contacted at corrine.henry@mfg.com.jm or via www.myersfletcher.com.