Until the testator dies, the individual is free to alter (by codicil) or revoke the will. The issue is that the will must be revoked in a particular way. It must be revoked in writing in accordance with the wills act (a new will revoking or replacing the previous one) attested by the appropriate witnesses and signed, or illistrated by destroying the previous will in some act.
There are six ways to revoke a will:
- There is a physical act
- An express revocation by will formalities
- Implied revocation with will formalities
- A matter of law
- Creating an entirely new will
- The will is lost.
Writing or Physical Act
Thompson v. Royall
175 S.E. 748 (Va. 1934).
Question
Whether Mrs. Kroll had revoked her will.
Rule
To revoke a will there must be an act destroying the will accompanied by the intent to revoke the will.
Holding
The intent was there, but not an act. The will is not revoked, affirmed.
Facts
Mrs. Kroll had executed a will but later wanted to revoke it. She went to an attorney and instructed her to destroy the will. However, the attorney suggested she keep it as a memo if she wanted to make a new will later. So, the will had a cover and back stating the will cuntained was null and void and was to only be used as a memo.
Mrs. Kroll died and several of her nieces and nephews were not mentioned in the will. Those who were mentioned sought to put the will in probate.
Analysis
The will was not revoked by a writing attested by witnesses. So, the only way to revoke it was by showing the intent (no question here) and some way of destroying it. Here, there was no evidence of destruction. The text was still intact. Both the act and the intent are necessary. So, the will was not revoked.
Harrison v. Bird
621 So. 2d 972 (Ala. 1993).
Question
Whether the will was revoked.
Rule
If the destroyed will was not found within the possession of the testator, then there is a presumption the will was destroyed. This presumption can be rebutted by the person seeking to admit the will to probate.
Holding
The presumption was not rebutted. Thus, the will is considered revoked. Affirmed.
Facts
Ms. Speer called her attorney and said she wanted to destroy the will. The attorney tore up the will and wrote to Ms. Speer to inform her of the destruction. The letter was sent to Ms. Speer. Upon her death, the letter was discovered in her possession but not the torn pieces of the will.
Analysis
Based on the facts, Ms. Harrison (the person seeking to enter the will) did not rebut the presumption of the will’s destruction. That is, the evidence shows the testator was in possession of the evidence last, and the will is not found after the testator passes, there is a presumption of revocation. This presumption can be rebutted if there is evidence the testator did not intend to revoke the will (e.g., testator asking, “where is my will?”; third party tampering with the will).
In re Estate of Stoker
122 Cal. Rptr. 3d 529 (App. 2011).
Stoker had executed a 1997 will designating Gularte (his girlfriend at the time) as the executor. Later, Gularte and Stoker broke up, Stoker destroyed his original will, and created a new will. The new will was dictacted to a friend, who wrote it down word for word, then the will was signed by Stoker. This will was not signed by the witnesses. The new will stated taht Gularte would get nothing and his two children would get everything. When Stoker died, Gularte sought to probate the original will while Stoker’s children contested and sought to probate the new will.
Although this was a will lacking the formalities, the harmless error rule applies. There was clear and convincing evidence the testator sought the document to be his final will. This was evidenced by devising all his property, altering the previous will, and destroying the previous will. Although the evidence suggests he destroyed the original, the true facts were that he destroyed a photocopy (not a duplicate). The intent was still there.
Additional Notes
If a testator is in possession last, a partial revocation (cross out in the paper) will have the presumption the will has been revoked. An issue arises if the testator partially revokes and seeks to add in a new provision.
Dependent Relative Revocation
This is a doctrine where if the decedent revoked a will based on a mistaken belief about the law or a fact (e.g., believing a new will was valid but it wasn’t), then the court may disregard the revocation.
LaCroix v. Senecal
99 A.2d 115 (Conn. 1953).
Dupre had a will giving half of of her estate to her nephew and the other half to Aurea Senecal, an individual unrelated to the decedent. Later Dupre added a codicil redefining the name of her nephew. The codicil had no change to how much Senecal was to receive. However, the codicil was signed by Senecal’s husband, meaning she was an interested witness and the codicil was invalid. Thus, the question is whether the original will can still stand (being revoked by the codicil).
The appeal is whether the doctrine of dependent relative revocation should apply. The doctrine is defined as “Where the intentioin to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.” Here, the intent was to revoke the will was conditioned on the execution of the codicil (which ultimately did not change how much Senecal was to receive). Because the codicil was not effectual, then the original will can continue to operate.
Reviving Revoked Wills
A majority of states say that revocation of a second will results in the first will being revived, if the testator intended the first will to be revived. This intent can be shown by the circumstances surrounding the revocation of the second will (oral statements, etc.). A minority of states say the revoked will cannot be revived unless it is properly and formally executed in a later will.
Revocation by Operation of Law
Sometimes wills become old and stale, ineffective with the passage of time. Three things could render a previous provision of a will inneffective: a divorce, a marriage, and having additional children.
