Law School Case Brief
Thompson v. Royall - 163 Va. 492, 175 S.E. 748 (1934)
Requirements for revocation of a will are found in Va. Code Ann. § 5233 (1919) the pertinent parts of which read that no will or codicil, or any part thereof, shall be revoked, unless by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the same, or the signature thereto, with the intent to revoke.
Plaintiffs are heirs of the testatrix, whose will and codicil were offered for probate by the beneficiaries. All the interested parties, including the plaintiffs, were convened and the jury took into consideration the previous will of the testatrix and not the latest one that she executed before her death. It appears that she had the intent to destroy the will and codicil but instead of destroying the papers, at the suggestion of a judge, she decided retain them as memoranda, to be used as such in the event she decided to execute a new will. The appellate court sustained the verdict of the trial court.
Was there sufficient evidence to establish that the will of the testatrix has been revoked before her death?
The judgment probating the testatrix's will was affirmed because while the proof established the intention to revoke, the testatrix failed to carry out that intent as required under the statute. Revocation of a will by cancellation within the meaning of the statute, contemplates marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke. If written words are used for the purpose, they must be so placed as to physically affect the written portion of the will, not merely on blank parts of the paper on which the will is written. In this case, the testatrix did not destroy the old will and codicil and there was no clear indication that she effected a revocation before her death.
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