Revocation of a Will

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 If I Write a Will, Can I Revoke It?

A will is a legal document created and signed by an individual known as a “testator.” It is created to distribute the person’s property and assets upon death.

You can revoke your will at any time and for any reason. Many people revoke wills because they want to draft a new one after getting married, getting divorced, or having a child. Sometimes, they want to revoke a will because the original person(s) they designated in their original will is/are not alive or is no longer close to them.

Revoking a will means permanently or partially destroying a will already in place. Will revocation is the nullification of a will by 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 If a legally valid revocation is made, the will that was revoked is considered to no longer have any legal force or effect.

The will becomes void after the will is destroyed in its entirety or after a portion is properly revoked. After a will is revoked, the testator (the person who made it) will need to rewrite and execute a new one if they choose to have a valid one.

Some states require that the entire will be destroyed to be revoked. This means that if the testator physically destroys certain provisions while leaving others intact, the will is not considered to have been revoked. Other states permit partial revocation. In this case, if a testator physically destroys a specific provision or provisions of the will, those provisions will be deemed revoked, but the undestroyed provisions will be considered part of the final will.

The testator may revoke a will in one of two ways: through writing or a physical act.

How May a Will Be Revoked Through a Writing?

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 a second will or a second instrument providing for the distribution of the testator’s estate (such as a testamentary trust). It is a good idea for the testator to use express revocation language in the second will that states directly that the prior will is revoked.

Such language typically reads something to the effect of, “I hereby revoke all wills heretofore made before me.” It is also a good idea to write “This is the Last Will and Testament of [name of testator]” at the top of the will and include the date of the signing of the will so that if there is more than one will there will be no question about which was the most recent one.

States may require that the subsequent testamentary instrument (later will or trust) be executed with certain formalities. These formalities include requiring that a specific number of witnesses observe the signing of the second will and that the witnesses also sign their own names. State law requires two things of the testator: (a) that they sign the will and (b) that they have sufficient testamentary capacity to revoke their current will and make another. “Testamentary capacity means that the testator has a sound mind and the judgment to understand that they are making a will. They must also be able to understand what property they include in their will and to whom they are giving it.

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 inconsistent with the first’s. For example, the first will grant the testator’s house to the testator’s daughter, and the second will give the house to a son.

Without the language of revocation, the wills must be examined together. If wholly inconsistent provisions are found upon review of both wills, 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.

How May a Will be Revoked by a Physical Act?

Physical acts that validly revoke a will include the testator’s intentionally burning, tearing, cutting, obliterating, or otherwise mutilating the will. Generally, the physical act must evidence a present intent by a testator to revoke the entire will. Examples include:

  • Destruction of the will
  • Writing the word “VOID” across each page of the will
  • Crossing out their signature with an “X”

Some states only require partial revocation by physical act for specific provisions to be revoked, rather than the whole will. The testator may change a bequest given to someone by defacing the language of the bequest. They can then give the amount of that bequest to another person who has already been given a bequest.

For example, say person X was originally bequeathed $500,000. The testator deletes this provision by defacing it somehow (e.g., scratching it out). The testator further decides to modify the next gift by striking the sum in that provision and changing it to add $500,000 to the amount of that gift.

If the deletions and modifications are dated and initialed by the testator, some states regard this physical act of partial revocation as valid. Other states do not affect “partial revocation by physical act.” These states would not give effect to such a modification.

What if a Will Cannot be Found?

Sometimes, a will last seen in the testator’s or their attorney’s possession is not found at death. If this will is not found with the decedent’s last effects, and neither the attorney, the probate court, nor any other individual can find the will, then the will is considered lost. Traditionally, state law has presumed that a lost will was purposefully revoked.

The presumption that a lost will is a “dead” will be rebutted (overcome). To do this, the person claiming the lost will was meant to be the final will must prove that:

  • The will was not actually revoked by writing or by a physical act
  • The will was properly executed (signed and witnessed)
  • The will’s provisions are “proved” (were the provisions the testator intended). A will’s provisions can be proven by individuals who were present at the will’s signing and who saw those provisions. For example, if a will is lost, but the witnesses to that will saw it at the time of the signing and saw that it left all of the property and assets to the testator’s spouse, that is proof (or at least strong evidence) of the will’s provisions.

There is another situation where there is no presumption that the testator intended to revoke the will. If evidence indicates that the will was last seen in possession of someone who would be adversely affected by its contents, the presumption that the testator destroyed the will by a physical act is not created.

Do I Need a Lawyer for Help with a Will Revocation?

If you desire to revoke part or all of a will, consult a will attorney. This type of lawyer is often known as an estate or probate lawyer. The lawyer can assist you by explaining the revocation process and by assisting with satisfying the revocation requirements.

If there is a challenge to the will, an attorney can represent your interests in court. Because the laws concerning will revocation are state-specific, choosing an attorney from your own state makes sense.

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