Will Revocation and Revival

Wills can be revoked at any time by the testator or by someone in the testators presence and under his direction until his death. As a practical matter, a will can be revoked by act, by destroying it. However, if a will is still readable, all states treat the will as being revoked if it was the intention of the testator to destroy the document. Most jurisdictions will also treat the will as being destroyed if the signature to the will is destroyed, such as erasing it or drawing a line through it. Rather than destroying it, it may be better to revoke the will simply by writing the words "revoked" and then date it so that others will not be able to contest that it was merrily destroyed and not revoked.

A will can also be revoked by writing another will. A new will can revoke the prior will either expressly or by inconsistency. If the revocation is not expressed, but the new will disposes of all the testator's property, then it is presumed that the new will replaces the old will. If the new will disposes of only part of the testator's property, then it is treated as a codicil, which is a document to revise a will.

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Revoking a will revokes all codicils to the will; however, revoking a codicil does not revoke the will or other codicils to the will.

Real World Example — The Revocation of Previous Wills by Elvis A. Presley

"I, Elvis A. Presley, a resident and citizen of Shelby County, Tennessee, being of sound mind and disposing memory, do hereby make, publish and declare this instrument to be my last will and testament, hereby revoking any and all wills and codicils by me at any time heretofore made." — from Last Will and Testament of Elvis A. Presley

Partial Revocation

In many jurisdictions, a will can only be partially revoked by a later writing or codicil, not by physical act, such as by striking out particular words in a will. Hence, in these jurisdictions, the original will will be probated as is—the stricken words will still be part of the will, and added words, such as interlineations, will be ignored.

The rationale for not allowing partial revocation is that it can increase the potential for fraud. Another problem is the question of where the property goes if it was partially revoked by physical act. Many jurisdictions hold that a new gift can only be granted if it is a writing done under the Wills Act formalities. A codicil solves the problem of revoking a gift by giving it to another beneficiary under the Wills Act formalities.

However, many states and the Uniform Probate Code (UPC) §2-507 allow partial revocation by act. A partially revoked gift usually increases the residuary, but it may not increase specific bequests, depending on whether the jurisdiction finds an inconsistency between the old gift and the new.

Because there is no evident inconsistency, revoking a residuary clause in the new will does not revoke specific bequests in the prior will.

Examples of Partial Revocation

Case 1: A and B are to receive $20,000 total. The gift to A is later revoked, B still only gets $10,000. The other $10,000 would go to the residuary.

Case 2: Will #1 gives B $4,000 and Will #2 gives B $3,000: if the court finds an inconsistency between the 2 wills, then B gets only $3,000, but if the court finds no inconsistency, then B would get the $4,000 bequeathed in Will #1 plus the $3,000 bequeathed in Will #2 for a total of $7,000.

Revocation By Presumption

If the testator was known to have made a will but it cannot be found after her death, then there is a rebuttable presumption that the testator revoked the will by its destruction. Revocation is presumed because the testator knows that the will is an important document, and, hence, would safeguard it, such as by putting it in a safe deposit box, as is often done, or keep it with other valuable papers.

Generally, the presumption can be rebutted with a reasonable explanation as to why it got lost. However, a lost will can only be probated if its terms can be proved. Some jurisdictions require a preponderance of the evidence, while others require the stricter clear and convincing evidence standard.

Duplicate Originals

A duplicate original of a will or codicil is a copy of the original with the actual signatures of both the testator and the witnesses; hence, the duplicate original is not a photocopy of the original. Usually, duplicate originals are created in the same ceremony as the original will or codicil. If the testator revokes a will or codicil, then all duplicate originals are also revoked.

However, the presumption doctrine does not apply to duplicate originals, since the duplicate original may have been lost. The rationale is that, in most cases, the testator takes the duplicate original home and leaves another duplicate original with her attorney or may file it with the Registrar of Wills at the probate court. Hence, the testator may be less careful in preserving her duplicate original since she knows that there is another duplicate original in a secure location.

Dependent Relative Revocation (DRR)

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A dependent relative revocation (DRR) is a revocation caused by a mistaken belief in law or fact. Such a revocation is considered ineffective since the testator would not have revoked but for the mistaken belief. A very common scenario is when the testator executes a new will and destroys the old one, believing that the new will is valid, but the probate court finds it invalid. In this case, the probate court would probate the old will if its contents can be known.

Courts have limited the DRR doctrine to where there is an alternative disposition of the property or where the mistake is evident in the revoking instrument or where there is clear and convincing evidence that the testator revoked because of a mistake.

Example: Mistake in Law

Testator's will bequeathed $5,000 to B, but later, the testator crossed out the $5,000 and wrote in $10,000, then initialed it. The court later finds that the holographic codicil—the written $10,000—does not satisfy the jurisdiction's requirements for a holographic codicil; hence, it is ineffective. Because the gift failed because of the testator's mistaken belief that the new gift was legally effective, the court would award B only the original $5,000.

Example: Mistake in Fact

The testator wrote in his codicil, "Because A has died, I am adding her gift to B." The testator then dies, but it is discovered that A has not died. Because the mistake in fact is written in the codicil, the court gives A her original gift from the will.

Revival of a Revoked Will

When a later will, or part, is revoked, is the earlier will or part revived? Under the law in most states, the later will revokes the earlier one at the time of execution. However, the earlier will is only revived if it can be shown from contemporary or subsequent declarations that the testator intended that the prior will take effect. However, some states require that a revoked will can only be revived if it is re-executed observing Will Act formalities.

Some states hold that a will only takes effect at the testator's death; hence, a will cannot really be revoked, since only the testator can revoke the will, and by the time the will takes effect, the testator is dead. Hence, only the last will is probated.

Under UPC §2-509, if the previous will or part is revoked by a later will, but then the later will is revoked, then the original will remains revoked unless it is revived, either by the testator asserting that he wants the earlier will revived or by contemporary or subsequent declarations that the testator intended that the earlier will take effect.

Revocation By Operation Of Law: Divorce Or Annulment

Almost all states, by operation of law, revokes any part of the will concerning the spouse or her relatives, not only in regard to bequests, but also concerning any fiduciary appointment, such as being appointed as the executor of the estate. UPC §2-804 extends that revocation to any governing instruments, which it defines as deeds, wills, trusts, insurance or annuity policies, payable on death accounts, pension plans, and other nonprobate donative transfers that were acquired before the final divorce or annulment decree. The UPC also severs the interests of the former spouse in property held as joint tenants with a right of survivorship or community property with a right of survivorship, converting those interests into equal tenancies in common.

The revocation has the effect of treating the spouse and her relatives as disclaiming their interests and in the case of the fiduciary appointment, as if they died before the divorce or annulment. Federally regulated pension benefits, however, are determined by the federal law rather than state law.

A will can also be altered by subsequent marriage under the omitted spouse doctrine, or by after-born or after-adopted children under the omitted child doctrine. A will can also be altered in a separate property state by a spouse taking an elective share of the estate.