A will is a legally binding document, created and signed by an individual, known as a “testator.” It is created for the purpose of distributing the person’s property and assets upon their death. Will revocation is the revoking of a will by an act of the testator. If a legally valid revocation is made, the will that was revoked is considered to no longer have any legal force or effect.
A will may be revoked by the testator in one of two ways: through a writing, or through a physical act.
A writing that constitutes a subsequent testamentary instrument can serve to revoke a will, if that writing contains language of express revocation. A “subsequent testamentary instrument is basically a second will, or a second instrument providing for the distribution of the testator’s estate. The testator may use express revocation language in the second will that states the prior will is revoked. Such language typically reads something to the effect of, “I hereby revoke all Wills heretofore made before me.”
States may require that the subsequent testamentary instrument be executed with certain formalities. These formalities may include having witnesses sign the will, and requiring the testator to sign the will and to have sufficient mental capacity.
In some instances, the language of the second will does not contain the language of express revocation. With such wills, problems arise when the second will has terms completely inconsistent with those of the first will. If, for example, X will granted testator’s house to one of testator’s children, and subsequent Y will without language of revocation granted the house to a different child, the wills must be examined together.
If, upon review of both wills, provisions consisting of wholly inconsistent provisions are found, many states will deem the second will to have revoked the first will by implication. Revocation by implication does not serve to revoke the entire will; rather, it only revokes to the extent of the inconsistent provisions.
Physical acts that validly revoke a will include the testator’s intentionally burning, tearing, cutting, obliterating, or otherwise mutilating a will. Generally, the physical act must evidence a present intent by a testator to revoke the entire will. Consider the following:
- Intent to revoke is expressed by language such as writing the word “VOID” across each page of a will. Intent to revoke is also expressed by the testator’s crossing out their signature with an “X.”
In instances of revocation by physical act by a person other than the testator (i.e., revocation by proxy), the required physical act must generally be:
- Performed at the testator’s request; and
- Performed in the presence of the testator.
In addition to these two requirements, states may require that there be witnesses to the performance of the physical act performed at the testator’s request in the testator’s presence.
Some states require only partial revocation by physical act. That is, a testator may delete an entire provision, and modify an existing provision, so as to remove a bequest given to one individual. They can then give the amount of that bequest to a person who has already been given a bequest (e.g., person X was originally bequeathed $500,000. The testator decides to delete this provision. The testator further decides to modify the following provision, by striking the sum in that provision and changing it to add the sum of $500,000).
If the deletions and modifications are dated and initialed by the testator, these states regard this physical act of partial revocation as valid. Other states such as New York do not give effect to “partial revocation by physical act.” These states would not give effect to such a modification.
Most states follow a presumption regarding wills that cannot be located after the testator dies. If a will that was last seen in the testator’s possession or control cannot be found, it is presumed that the testator destroyed the will by physical act. Specific evidence can rebut this presumption. For example, if the court relies on evidence indicating that the will was left for safekeeping with an attorney and the attorney cannot find it.
If evidence indicates that the will was last seen in possession of someone adversely affected by its contents, the presumption that the testator destroyed the will by a physical act is NOT created.
If you desire to revoke part or all of a will, you should consult with a wills, trusts, and estates attorney. This type of lawyer is often also known as an estate lawyer or probate lawyer.
The lawyer can assist you by explaining the revocation process, and by providing assistance with satisfying the revocation requirements.