Revoking a will means permanently or partially destroying a will already in place. After the will is revoked or destroyed in its entirety, the will becomes void. A will can be revoked in part also. After a will is revoked in its entirety, the testator, the person who made the will, needs to rewrite and execute a new will if they wish to have a valid will.
Destroying a will does not necessarily require the presence of an attorney. However, if a person intends to destroy one will and write a completely new one or amend an existing will by creating a codicil, they might want to hire a lawyer to make sure it is correctly done as required by the state’s law. The processes of destroying a will or amending, i.e., revoking part of a will, are discussed below.
It is also important to remember that wills, estates, and probate are all matters determined by the state law in which a testator, the person who creates a will, lives at the time of their passing. Each state has its own laws. There are certainly commonalities, but there are also differences. This is why it is important to consult a lawyer who is knowledgeable about the applicable law in the state where a testator resides at the time of their passing.
How Do I Destroy a Will?
There are a few ways to destroy a will completely. A person can rewrite their will and, in the new will, clearly express their intent to terminate the former will. This completely revokes the first will. Also, physically destroying the will by burning or shredding or any other act that destroys it physically cancels it. A person wants to make sure to destroy the original and all copies of it.
Please note that if a will is accidentally destroyed, even though it is not the testator’s intent, it is still void and has no legal validity.
What Circumstances Automatically Amend a Will in Probate Court?
Probate courts are courts with the authority to handle matters dealing with the estates of people who have passed away. If a person leaves a will, it is presented to a probate court. The court generally interprets the will in the way that best achieves the testator’s intent.
Still, in some situations, the court may need to use context clues from the circumstance to include children born after a will was made or children otherwise not mentioned in the will for some reason.
- Afterborn Child: An after-born child is a child who is not yet living when a will is written. A probate court can usually interpret a will to include the child, ensuring that they receive their rightful share;
- Omitted Child: As noted above, the laws regarding wills and probate vary from state to state. Thus, the following definitions may not be the same throughout the states:
- In some states, if a child is not mentioned in a will, the courts assume it was a mistake and treat the unmentioned child like an afterborn child. Therefore, if the testator wants to omit a child from their will, they should explicitly declare in the will that they are intentionally omitting that child. A testator can disinherit a child, but this must be done expressly and per the requirements of the law in the relevant state;
- In other states, a court may interpret a will exactly as it is written. A child who is not mentioned and is not afterborn does not receive any distribution if they are not expressly acknowledged in a will. It pays to be careful and consult a lawyer concerning children and a will.
What Is a Codicil?
A codicil is an amendment, or change, to an existing will. When a testator wishes to change a will without canceling the previous one, adding a codicil may be easier. Remember, a will should be clearly written. Therefore it may be best not to add several codicils, as this may create confusion. If a testator wants to make several substantive changes to a will, they probably want to write a new will.
What Situations Might Automatically Cancel Parts or All of a Will?
A few issues may automatically cancel a part or an entire will. These include the following:
- Ex-Spouses: If a will is created before a couple is divorced, the court may automatically cancel the portion of the will that results in a distribution of the testator’s estate to the former spouse;
- Illegal Subject Matter: A person cannot leave illegal assets in a will. Therefore a probate court automatically cancels portions of a will that provide funds for unlawful purposes or distribute illegal items, e.g., stolen property or other contraband.
Again, a will may or may not be revoked in whole or in part automatically when events such as a divorce, an annulment, or a marriage take place. For example, in California, divorce or the annulment of a marriage does not automatically revoke a person’s existing will. They give rise to the legal presumption that any bequests made to a person’s former spouse in their will should be revoked.
In addition, any provision in the will that gives general or special power of appointment, which authorizes another person to direct distribution of a person’s assets after they pass away, to your former spouse or any section nominating them as a guardian, executor, trustee or conservator may also be rendered null and void.
After divorce, if a person wants to make a bequest to a former spouse or nominate them to a fiduciary role, a person must write a new will that clearly expresses their intentions.
If a person gets divorced and relies on their will being revoked by the operation of law, it could lead to problems. For example, a person’s former spouse could argue that the person did not intend to cancel a bequest to the former spouse.
If this should happen, the person’s other intended beneficiaries might have to resort to litigation with the former spouse to receive their rightful share of the estate. So, the most certain way for a person to disinherit a former spouse is to either revoke or amend their will when they dissolve their marriage.
For instance, in California, when a person gets married, this does not automatically revoke their pre-existing will. Still, a surviving spouse not named as a beneficiary in their spouse’s will written before marriage may be considered an “omitted spouse.” Under California’s intestate statutes, they are entitled to the same inheritance as the surviving spouses of people who died intestate, i.e., without any will.
Can a Will Be Revoked after the Death of the Testator?
A will can only be canceled or revoked by the testator. Therefore, no one can cancel a will after the testator’s death. However, a court can declare a will null and void and of no force and effect after the death of the testator under the following circumstances:
- Duress/Undue Influence: Someone forced the hand of the testator to make changes to the will or write a will unwilling;
- Lack of Testamentary Capacity: When creating a will, a testator must have the mental capacity to understand what they are doing full;
- Fraud: Fraud can come in many forms. A will made under fraudulent circumstances would be invalid. Of course, the fraud would have to be proven when the will is probated;
- After-dated Will: If there are two wills and the will with the most recent date does not mention the cancellation of the first will, the will with the earliest date overrides the second. The second will be declared invalid; and
- Age: The testator should be at least 18 before creating a will. A person under the age of 18 cannot make a will. Any will that a minor purports to make would be invalid.
As long as the testator is in their right mind and has the necessary mental capacity, a will can be canceled at any time. Generally, no witnesses are needed to cancel a will. As noted above, the testator who made the will only has to destroy it. Or, if they want to make a new will, they include a provision in the new will that clearly expresses the intent to revoke the previous will.
For example, language such as this would probably be effective: “I declare this will to be my last will and testament, and I hereby revoke all prior wills, testaments and codicils.”
Do I Need the Help of an Attorney to Cancel My Will?
A will should be part of a complete estate plan. If you want to create a will, whether a new one or one that replaces an existing one, you should consult a will lawyer specializing in wills. Your lawyer can help you with your estate planning needs and guide you through any court processes if you need to file a claim in connection with a will.