Revoking a Will, Methods
As a general rule, a will can be changed or cancelled at any time before the testator's death. A will may be revoked (i.e., recalled or cancelled). This article discusses methods for revoking a will.
Prerequisites for Revoking a Will: Intent and Capacity
There are several different ways to revoke a will. However, a will cannot be revoked unless the testator intends to revoke the will. In order to revoke a will, there must be a concurrence between the testator's intent to revoke the will and an act that revokes the will. If a testator announces an intention to revoke his or her will but does not act on that intention, the testator's will is not revoked. If an act that would otherwise revoke a will is not done without the testator's knowledge or at his or her direction, the testator's will is not revoked. Not only must a testator have the intent to revoke his or her will, the testator must also have the same basic capacity as required to make the will in the first place.
Revoking a Will by Another Writing
One way to revoke a will is by a clause in another writing made and signed with the same formalities required for a will. Indeed, a will often contains a clause revoking the testator's prior will. A will can also be partially revoked by a will amendment known as a codicil.
Revoking a Will by Physical Act
Another way to revoke a will is by a physical act done with a current intent to revoke the will. The common physical acts are burning, cutting, tearing, or otherwise destroying the document, or drawing lines or otherwise obliterating the words in the document's text.
It is important to remember that a will cannot be revoked accidentally. If a will is merely misplaced, lost, or stolen, it is not revoked. If the contents of the will can be reliably recreated from other sources, the will controls the disposition of the testator's estate.
In most states, there is a presumption that if a will that cannot be found was last in the possession or control of the testator, then the will was revoked by the testator by physical act.
Revoking a Will by Operation of Law
A will can be revoked, or partially revoked, by operation of law.
A provision in a new will or codicil that contradicts a provision in an old will or codicil revokes the provision in the old will or codicil. That is why it is important to find the last will and codicil, if any. Also, in most states, a final decree of divorce, dissolution, or annulment automatically revokes gifts in the testator's will to the testator's spouse.
Your lawyer can explain will revocation and related laws in your state. Your lawyer can help you decide if you should revoke your current will and, if so, how. Your lawyer can also help you decide if you should make a new will or codicil.
Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.