Revocation of a Will

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If I Write a Will, Can It Be Revoked?

Yes, a will may be revoked by the testator. The testator is the person who wishes to make a will. There are three ways in which a will may be revoked:

How Can a Will Be Revoked by a Writing?

A will can be revoked, either directly or indirectly, by a writing. A will is directly revoked if you make another will that states that the earlier will you make is revoked. Also, if you add a part i.e. a paragraph or page to your current will stating that your current will is revoked, then this is a direct revocation. 

Further, a will may be indirectly revoked (either in party or entirely) by the implication from the terms of a subsequent writing. For instance, if a subsequent will or addition to the will states that "If so and so happens, then my will is revoked," then the implied condition in these words may be able to revoke your will.

How Can a Will Be Revoked by a Physical Act?

There are three general requirements for a will to be sufficiently revoked by some physical act:

  1. The will must be burned, torn, canceled, obliterated or destroyed. Obliterating and cancelling includes acts of drawing a line through will provisions or erasing parts. 
  2. The act must be accompanied by the creator’s present intent to revoke his or her will.
  3. Lastly, if the physical act constituting a revocation is performed by someone other than the creator of the will, this other person must act in the presence of the will’s creator, and at his or her own direction.

What If a Will Cannot Be Found?

Notice that revocation by physical act does not require that witnesses be present. If a testator destroys the will in a manner where the will is completely non-existent, and no one is around to witness the revocation, how do courts know that the will has been destroyed?

Sometimes it is known that the testator created a will and had possession of the will, but the will cannot be found after the testator passes away. If the evidence establishes that the deceased had possession of the will prior to death, but the will is not among her property after death, the will is presumed destroyed and thus revoked. This is true even if duplicate wills exist, but the duplicate wills were not in the deceased’s possession at time of death.

The presumption that the deceased revoked the will through a physical act is rebuttable though. The party advocating probate of the non-existent will carries the burden of proving that the deceased did not revoke the will.

How Can a Will Be Revoked by the Law?

The law may cause a will to be revoked in certain circumstances. Such circumstances include marriage, birth of children, or divorce.

What If the Testator is Mistaken About the Conditions Regarding a Revocation?

Suppose that a testator revokes a will giving her son property because the testator believes that the son has married someone the testator does not approve of. However, the testator is mistaken in her belief and in fact the son has broken up with that person. Nevertheless, the testator passes away with the mistaken belief and the will does not give the son any property.

Many states will declare that the revocation is ineffective and that the will should be probated if the testator had known the truth. Courts in these states will hold that the testator lacked proper intent if the revocation is based on a mistaken belief.

Do I Need a Lawyer to Draft My Will?

Lawyers are extremely helpful in understanding the complications your will may face. Further, in such situations as birth, marriage, or divorce, an estate planning attorney can help you to better understand if and how the law can revoke your will. With such guidance, you will better be able to understand what could happen with your property and perhaps, how better to divide it. 

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Last Modified: 10-14-2013 01:00 PM PDT

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