Executing and Revoking a Will
Because a will is a mechanism that, by definition, plays out after the death of its author, it is naturally more susceptible to fraud than many other transactions. The need to combat the possibility of fraud has led to the law placing stringent requirements on the execution of wills. This presentation will look at those requirements and then discuss how wills can be revoked.
Laws are consistent among states in requiring four elements for the execution of a valid will:
1. testamentary capacity
2. testamentary intent
3. signature, which must be witnessed, and
4. “publication” to the witnesses.
Testamentary capacity is a low standard to meet. To be eligible to create a valid will, the testator need only:
- understand the nature of the act of making a will
- know the “natural objects of his bounty” (which means who his heirs are)
- have a basic idea as to the nature and extent of his property
- be competent enough to understand the disposition of assets set forth in the will he is purporting to execute.
Because virtually every healthy adult is capable of meeting these criteria, challenging a will on this basis is extremely difficult.
There are other bases to challenge a will that are similar to capacity, however. Those include duress and undue influence. Duress makes a will unenforceable when the testator was forced to execute a will. Undue influence makes a will invalid when another person so heavily and improperly influenced the testator that the other person, in effect, substituted her “will” for that of the testator.
For a will to be valid, the testator must have intended this document to be his will. The will is not valid if the testator is mistaken as to the fundamental nature of the document. For example, if the testator believes that this document is effective immediately rather than upon death or does not realize that he is using this document to direct the distribution of his estate, that could be grounds for nullification. The signature and publication elements that we will discuss momentarily are designed to be evidence of testamentary intent.
It should be noted, however, that to invalidate a will, the testator’s mistake must relate to the nature or execution of the document. If the testator was merely subject to a false impression that served as the reason for a gift, that does not invalidate a will. So, for example, if the testator left $100,000 to his niece because he thought she was going to medical school, when in fact, she was going to law school, this does not invalidate the will or the gift to her.
A signature in this context means any mark that the testator intended to serve as a signature. It could be his name, a symbol or the letter “X.” If the testator is mechanically unable to sign, he can appoint somebody else to sign for him. The key is intent. If the testator caused a mark to be affixed to the document with the intent that the mark serve as his signature, that is sufficient.
The signature also must be witnessed, typically by two or more competent adults.
Publication, in this context, means the testator stating to the witnesses that he intends this document to be his will. While generally a formality, the statement allows the witnesses to be sure that the testator intentionally signed the will. When signing underneath the testator’s signature, the witnesses acknowledge that the testator published the will to them by telling them that he intended this document to be his will and that he signed it with that intent.
While not required, it is also common practice for witnesses or other present parties to sign affidavits immediately after the signing of the will, attesting to the fact that the will was signed, published and acknowledged by the witnesses. This affidavit, also known as a “self-proving affidavit,” provides testimony that the will was validly executed and can allow the will to be admitted to probate after the death of the testator without the need to track down the witnesses at that time.
Wills are, by their nature, revocable. This means that they can be canceled or amended at any time and for any reason by the testator. There are two ways in which wills can be revoked: subsequent testamentary instrument and physical act.
Revocation by Subsequent Instrument
A will can revoke a previous will signed by the same testator. In fact, it is common practice for wills to stipulate that they revoke all previous wills. Otherwise, all valid wills would have to be admitted to probate after death, making the proceeding more complex. If every will that a person executed revoked all previous wills, then only the latest one needs to be admitted to probate.
On the other hand, it is also possible to intentionally leave a previous will in effect, but to execute a new one to make additions or amendments. A testamentary instrument that is not intended to be a complete will is known as a codicil. These are used when one wants to change a will, but does not want to go through the hassle of drafting an entirely new will. All provisions of the previous will can be left in effect. As will drafts today are typically saved in MS Word format and can be easily edited and re-executed, the need for codicils has naturally declined. It’s usually easier to just re-execute an amended version of the old will than to bother with a codicil and have two valid testamentary instruments floating around.
If there are two valid wills, then they both control to the extent that they are consistent with each other. To the extent that they are inconsistent with each other, the more recent will (or codicil) controls, since the later instrument implicitly revoked the provision of the earlier instrument that it contradicted.
Revocation by Physical act
Finally, a will can be revoked by physically destroying it with the intent of revoking it through that act. This can be done by destroying the entire will, such as by throwing it into a fire or river, or by ripping out the signature, which is construed a symbolic destruction. A provision in a will cannot be revoked by physical act. Merely crossing out an existing provision or even ripping that provision out of the will has no legal effect, as that provision remains binding, assuming it’s content can be proven (such as by an earlier photocopy of the document).
Execution of a will requires certain formalities to decrease the likelihood of fraud or invalidity. These steps are designed to ensure capacity, intent and authenticity of the document purporting to be a will. Revoking a will can be done by physical act or by subsequent will, but the latter is a much better strategy, and it is the only strategy that can be used to revoke an element or provision within a will.