The testatrix had duly executed a formal will. Later, desiring to revoke it, she consulted her attorney. Rather than destroy the instrument, the attorney wrote a revocatory memorandum on the back of the will stating, in substance, that the will was null and void and should not be probated. The memorandum was subscribed by the attorney and witnessed by others, but the testatrix herself did not sign the revocatory writing. No part of the will's dispositive text or signature was torn, burned, obliterated, crossed out, or otherwise defaced; the memorandum did not touch or mark any of the will's written provisions. The testatrix died without executing a new will or a properly attested revocation. A dispute arose in probate over whether the memorandum and surrounding circumstances effected a valid revocation under the governing Virginia statute that permitted revocation either by certain physical acts or by a writing executed with will formalities.
Does a handwritten memorandum on the back of a will—stating that the will is revoked but not signed by the testatrix and not physically defacing any part of the will—constitute a valid revocation under Virginia's statute allowing revocation by cancellation or by a properly executed writing?
Under the Virginia statute in force at the time, a will may be revoked only by: (1) the testator's performance (or performance by another in the testator's presence and by the testator's direction) of a physical act upon the instrument—cutting, tearing, burning, obliterating, or canceling—demonstrating an intent to revoke; or (2) a subsequent writing declaring revocation, executed with the same formalities required for a will (i.e., signed by the testator and duly attested by witnesses). "Cancellation" denotes a physical defacement or obliteration of the written instrument itself, and mere declarations of intent or writings not executed with testamentary formalities are insufficient.
No. The memorandum did not effect a valid revocation. It was not a proper "cancellation" because it did not physically deface or obliterate any part of the will, and it was not a valid revocatory writing because it lacked the testatrix's signature and was not executed with the requisite formalities.
The court emphasized that the statute provides exclusive means of revocation, and courts cannot substitute general intent for statutorily mandated acts. First, revocation by physical act requires an actual defacement or destruction of the instrument's written terms. The memorandum here, placed on the back of the will and not crossing or obliterating any dispositive language, was not a "cancellation" within the statute's meaning. The term "cancel" is a term of art: it contemplates striking through, erasing, or otherwise marking upon the instrument so as to make its language inoperative. Merely writing a statement of revocation on a separate portion of the paper, leaving the testamentary words untouched, does not qualify. Second, the statute permits revocation by a subsequent writing only if the writing is executed with the same formalities as a will—most centrally, the testator's signature and proper attestation. The memorandum here was not signed by the testatrix. Although others signed as witnesses, the absence of the testatrix's signature prevented the memorandum from operating as a revocatory instrument. The court refused to treat the attorney's or witnesses' signatures as a substitute for the testatrix's execution. Finally, while the record demonstrated the testatrix's desire to revoke, the court reiterated that intent alone is not a statutory method of revocation. The formality regime exists to prevent fraud and posthumous fabrication and to provide certainty in succession. Because the attempted revocation satisfied neither the physical-act method nor the formal-writing method, the will remained valid and was properly subject to probate.
Thompson v. Royall teaches two enduring lessons. First, "cancellation" is a physical act upon the instrument itself; it is not satisfied by a declaration written elsewhere that leaves the testamentary language intact. Second, revocation by writing requires full compliance with will formalities, including the testator's signature. The case is frequently used to contrast strict-compliance jurisdictions with modern harmless-error reforms and to highlight the tension between testamentary intent and formal safeguards. For students, it is a canonical example of Wills Act formalism and a warning against informal revocation practices.
Thompson v. Royall anchors the principle that revocation of a will demands exact adherence to statutory forms. The decision rejects informal, well-intentioned attempts to undo testamentary dispositions when those attempts neither physically deface the instrument nor satisfy execution formalities for a revocatory writing.