Revoking a will means to permanently or partially destroy a will that is already in place. After the will is destroyed in its entirety, or after a portion of the will properly revoked, the will becomes void. After a will is revoked, the testator (the person who made the will) will need to rewrite and execute a new will to have a valid will.
Destroying a will does not necessarily require the presence of an attorney. However, if you intend to destroy a will and rewrite or amend it by creating a codicil, you might want to hire a lawyer. The processes mentioned above are discussed below.
There are a few ways to destroy a will completely. Rewriting a will and clearly expressing your intent to terminate the former completely revokes the first will. Also, physically destroying the will by burning or shredding or any other act that destroys the will’s physical form will cancel it.
Please note, if a will is accidentally destroyed somehow, even though it is not the intent of the testator, it is still void.
Probate courts (courts that are in place to handle matters dealing with the deceased property) generally interpret a will to reflect the testator’s intent best. Still, there are some situations where the court may need to use context clues from the circumstance to include afterborn children and children not mentioned in the will.
- Afterborn child: An after-born child is a child that was not in existence at the time of the writing of the will. Therefore, it was factually impossible to include the child. Thus, the court will interpret the will to include the child, ensuring they receive their rightful share.
- Omitted child: Firstly, probate laws vary from state to state. Thus, the following definitions are not uniform throughout the states:
- In some states, if a child is missing from the will, the courts will assume it was a mistake and treat the missing child as they would an afterborn child. Therefore, the testator might have to explicitly declare they are purposely omitting that child to write them out of the will.
- However, other states may interpret a will as is, and a child not mentioned (that is not an afterborn child) will not receive anything if they are not acknowledged in the will.
A codicil is an amendment to a previously-executed will. When a testator wishes to make changes to a will without altogether canceling the previous one, adding a codicil may be the easier option. Remember, a will should be clearly written. Therefore it is probably best not to add several codicils, as this may get confusing.
A few issues may automatically cancel or affect a will. These include:
- Ex-Spouses: If a will is created before a couple is divorced, the court will automatically cancel the portion of the will that pertains to the former spouse.
- Illegal subject matter: You can not leave things in a will that is illegal. Therefore the court will automatically cancel portions of a will, providing funds for unlawful purposes.
A will can only be canceled by the testator. A power of attorney does not grant the right to revoke a will. Therefore, no one else can cancel a will after the death of the testator. However, if the will is found to be invalid due to the following circumstances, it will be declared null and void:
- Duress/undue influence: Someone forced the hand of the testator to make changes to the will or write a will unwilling;
- Insanity: When forming a will, a testator must have the mental capacity to understand what is going on;
- Fraud: Fraud can come in many forms. An example of fraud would be someone singing a will after the will have already been properly executed, or misleading the testator, causing them to sign a will without knowing what it is;
- An after-dated will: If there are two wills and the will with the most recent date does not mention the cancelation 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.
So long as the testator is in their right mind, a will can be canceled at any time. Generally, no witnesses are needed to cancel a will.
A will can be a complicated document. The individual creating a will must understand clearly what they are doing. When writing a new will or canceling a current, you should seek an estate planning lawyer. A lawyer in your area can assist you with your needs and can guide you through any court processes if you need to file a claim.