Revocation (of will):
A testator has the right to revoke a validly executed will at any time. The three most common methods used to revoke a will are:
- by operation of law,
- by a subsequent will or codicil, and
- by physical act.
The key thing to remember, regardless of the method, is that the testator must have intended to revoke the will; this intention is presumed when the will is revoked by operation of law.
By operation of law
Today, family situations can change during the testator’s lifetime. As such, in many states, a change in family circumstances (e.g., marriage or divorce) may trigger the revocation (either fully or partially) of the testator’s will.
Historically at common law, marriage followed by birth of issue revoked a man’s will. Marriage alone, irrespective of birth of issue, revoked a woman’s will. However, the Wills Act of 1837 established a more uniform rule: marriage revoked the prior will of either the man or woman, with certain narrow exceptions.
Very few states follow the common law today. Yet, there is little uniformity among the states as to how marriage impacts the will. Some states have adopted a rule that marriage has no affect; others have pretermitted spouse statutes (discussed earlier in this chapter).
In still other states that have adopted the revised Uniform Probate Code, the will is only partially revoked, but limits the new spouse’s intestate share to the portion of the estate that is not devised to testator’s children (or descendents of deceased children) by a prior marriage. Thus, if the testator devised his entire state to his children by his first marriage, the omitted spouse takes nothing. See, e.g., UPC § 2-301.
EXAMPLE: Seth and Zoe have reciprocal wills under which, after making modest bequests to siblings, each leaves his or her estate to the other, provided the spouse survives. As an alternative, that portion of the estate will go to the couple’s children. Seth dies first. Several years later Zoe remarries; however, she does not change her will. Zoe dies. Under the revised UPC, the second husband’s intestate share as a pretermitted spouse will apply only to property bequeathed to Zoe’s siblings, not to the property she bequeathed to her children. Certainly, one can see how problematic this arrangement is, especially if there is a home involved that Zoe and her second husband shared—a potentially expensive oversight.
Given the variations of treatment outlined above, the testator should review his or her will and make the necessary changes any time there is a change in family circumstances.
Regarding divorce, the common law and early American law had no rule dealing with the effect of divorce on a previously executed will, since divorce was rare in that era. Today, under most statutes, a divorce or annulment of marriage automatically revokes all provisions related to the former spouse. In fact, the will is read as though the former spouse predeceased the testator. See, e.g., UPC § 2-804; In re Bloomer’s Estate, 620 S.W.2d 365 (Mo. 1981).
Although divorce revokes a gift to a former spouse, it usually has no affect on gifts to the former spouse’s relatives. If this is not the intended disposition, the testator should also make this change.
EXAMPLE: Seth’s will makes a gift to his wife, Zoe, if she survives him, but if not, then to his mother-in-law, Trisha. A few years later, Seth and Zoe divorce. Although the gift to Zoe is revoked, the one to Trisha is not affected by the divorce. So, if Seth dies before he changes his will, Trisha will still receive the gift. See, e.g., Bloom v. Selfon, 555 A.2d 75 (Pa. 1989); In re Estate of Graef, 368 N.W.2d 633 (Wis. 1985).
In addition, the divorce has no affect on the beneficiary designated in nonprobate assets, such as life insurance policies or revocable trusts. For example, if the life insurance policy names the insured’s former spouse as the beneficiary and this is not changed after the divorce, the proceeds will be paid to the former spouse.
Rather than totally rewrite the will, the testator may just decide to make a few changes, via a codicil. This codicil may expressly or impliedly (via inconsistent provisions) revoke the earlier will.
In addition to just making a few changes, the codicil can serve to republish a previously valid will. As such, this can operate to eliminate the rights of a spouse who married the testator after the will’s execution.
EXAMPLE: In 2014, Randy, who was single at the time, executed a will that devised his entire estate to his mother, Alberta. In 2016, Randy married Sheri. In early 2017, Randy executed a codicil to the original will that named a new executor. A few months later, Randy died. Under the doctrine of republication by codicil, Randy’s will is deemed to have been executed in 2017; therefore, Sheri is not entitled to a share of Randy’s estate as a pretermitted spouse. See, e.g., In re Estate of Ivancovich, 728 P.2d 661 (Ariz. 1986); In re Will of Marinus, 493 A.2d 44 (N.J. 1985).
Instead of changing the will to reflect changed circumstances, the testator might decide to tear it up or perform some other type of physical act (e.g., burn it or write across the face of it) on the will that would serve to revoke it. See, e.g. In re Estate of Deskins, 471 N.E.2d 1018 (Ill. 1984); Lovell v. Anderson, 533 S.E.2d 64 (Ga. 2000). To be most effective, these markings must touch the actual words of the will.
EXAMPLE: Randy writes in the margin of his will, “I hereby revoke this will.” Subsequently, he dies and the will is admitted to probate. Randy’s actions were not an effective revocation by cancellation because the writing did not touch the words of the will. Accordingly, the will would be accepted for probate. See, e.g., In re Mulligan’s Will, 40 A.D.2d 136 (1972).
Another way of obliterating the will is by cutting or crossing out the testator’s signature (the most important part of the will), which operates to revoke the will in its entirety. See, e.g., In re Estate of Funk, 654 N.E.2d 1174 (Ind. 1995).
Most states authorize partial as well as total revocation of a will by a physical act. See, e.g., In re Palmer’s Will, 359 So.2d 752 (Miss. 1978); Goriczynski v. Poston, 448 S.E.2d 423 (Va. 1994). Despite this acceptance, it may be problematic to determine the testator’s true intent, namely whether the intended revocation was complete or merely partial. Generally, extrinsic evidence is admissible to make this determination. Yet, courts are reluctant to allow changes that increase the size of the gift, due to the lack of testamentary formalities.
EXAMPLE: Shania’s will devises her personal residence in Nashville, TN to her sister, Faith, for life, remainder to her niece, Winona. Subsequently, Shania crossed out the words “for life, remainder to my niece, Winona.” Since this action serves to increase the gift to Faith to a fee simple from a life estate, the change will not be effective. Such a change needs to comply with testamentary formalities. See, e.g., Patrick v. Patrick, 649 A.2d 1204 (Md. 1994).
Most states have enacted statutes authorizing probate of a lost will. After all, if the testator took the time to write a will reflecting his or her intentions, if possible, it should be probated, despite being unintentionally lost or destroyed. Before a probate court will allow this procedure, a stringent test must be satisfied, establishing the following elements:
- valid execution of the lost will;
- the cause of the will’s nonproduction; and
- the contents of the lost will.
The first prong of this test can be satisfied by having the attesting witnesses testify as to the will’s valid execution. If the witnesses are unavailable, this proof will fail.
To prove the second prong of the test, the proponents of the lost will must show that the reason for the will’s nonproduction is not because it was revoked by the testator. Rather, the will had to either be in existence at the time of testator’s death or not fraudulently destroyed during his or her lifetime. In the latter case, some courts have held that a will destroyed without the testator’s consent meets this definition. See, e.g., In re Fox’s Will, 214 N.Y.S.2d 405 (1961).
Lastly, the standard for proving the contents of the lost will is generally very high, requiring, e.g., “clear and distinct proof” in New York or “full and precise” proof in Florida. See, e.g., N.Y. Surr. Ct. Proc. Act § 1407. Generally, testimony of witnesses (often two) who were familiar with the contents is acceptable. As an alternative, a true copy of the will can substitute for the testimony of one witness.