Introduction:
So, something has changed in your life, and you need to make alterations to the Will that is sitting in your drawer. Perhaps an heir has died or another heir, injured permanently in an accident, clearly needs more of your estate. Maybe you have decided to give more to charity and less to your already well-off nephew. Or perhaps the size of your estate has enlarged, and you need to rethink who is getting what.
Regardless, you have decided it is time to alter your Will, and you want to do it soon since one never knows when it will be needed. What do you do to alter the Will? Can you just scribble the changes on it and sign it again? Can you cross off sections and initial them? Or must you go to an attorney or online and create a brand-new Will, revoking the prior one?
That is the subject of this article.
The Basic Law:
A Will is a legal document executed by an individual known as a “testator.” It is created to distribute the person’s property and assets upon death. Unlike a Trust, which may be created during the life of the testator and distributes the property without the need for formal probate, most Wills require court involvement in the distribution of assets.
Once executed before two witnesses, the Will is a legally binding document that will be fully enforced by the court. Whether executed in your own hand (“holographic will”) or created by counsel and witnessed by two witnesses, the document is a powerful instrument that will allow the successful transfer of assets to your heirs.
While still living, one can revoke a Will at any time and for any reason. Many people revoke Wills because they want to draft a new one after getting married, getting divorced, or having a child. Sometimes, they want to revoke a Will because the original person(s) they designated in their original Will is/are not alive or is/are no longer close to them.
Revoking a Will means permanently or partially destroying a Will already in place. Will revocation is the nullification of a Will by the testator. If a legally valid revocation is made, the Will that was revoked is considered to no longer have any legal force or effect. If no new Will is created, the person is deemed to have died intestate. See our article on intestate succession. Most people will still want a personal say in dispositions after death; thus, a new Will is usually made.
Some states require that the entire Will be destroyed to be revoked. This means that if the testator physically destroys certain provisions while leaving others intact, the Will is not considered to have been revoked. Other states permit partial revocation. In this case, if a testator physically destroys a specific provision or provisions of the will, those provisions will be deemed revoked, but the undestroyed provisions will be considered part of the final will.
How to Revoke:
The testator may revoke a will in one of two ways: through writing or a physical act.
Physical Act
Physical acts that validly revoke a will include the testator’s intentionally burning, tearing, cutting, obliterating, or otherwise mutilating the will. Generally, the physical act must evidence a present intent by a testator to revoke the entire will. Examples include:
Writing the word “VOID” across each page of the will
Crossing out their signature with an “X”
Some states only require partial revocation by physical act for specific provisions to be revoked, rather than the whole Will. The testator may change a bequest given to someone by defacing the language of the bequest. They can then give the amount of that bequest to another person who has already been given a bequest.
If the deletions and modifications are dated and initialed by the testator, some states regard this physical act of partial revocation as valid. Other states do not allow “partial revocation by physical act.” These states would not give effect to such a modification.
A third party (such as an attorney) can also destroy the Will, but it must be done in the presence and at the direction of the testator.
A testator must have the requisite capacity and intention to destroy the Will. The test for capacity is the same as the test for making a Will and is set out in the 1870 case of Banks v Goodfellow. This was affirmed by Re Sabatini [1969], where it was ruled that a person must have the same standard of mind, memory, and understanding when destroying a Will as they did when they made it.
A leading English case illustrates a typical fact pattern:
The testator, Carry Keats, died aged 92 in February 2022. Mrs. Keats had previously made a Will leaving most of her estate to her cousins Angela and David Crew (the claimants), but on 26 January 2022, she sought to destroy the Will whilst in hospital, following a disagreement with the claimants over their plans to move her into a nursing home.
Mrs. Keats started to tear up the Will but was unable to tear beyond three-quarters of the way through. Her attorney, Haffwen Webb, asked Mrs. Keats whether she should assist. Mrs. Keats nodded, and Ms. Webb accordingly tore the Will completely in two. Ms. Webb had brought a draft Will (which left the estate to Mrs. Keats’ sister, Josephine Oakley) to the hospital for Mrs. Keats to execute, but she was unable to do so as she was by this time falling asleep. Mrs. Keats died less than a month after the Will was destroyed, without executing the new Will.
The defendant, Josephine Oakley, Mrs. Keats’ sister, subsequently applied for letters of administration on the basis that Mrs. Keats had died intestate. In response, Mr. and Ms. Crew issued the claim, alleging (i) that the Will had not been destroyed sufficiently and had accordingly not been revoked; (ii) that Mrs. Keats had not authorized Ms. Webb to complete the destruction, and (iii) that Mrs. Keats did not have the requisite capacity or intention to destroy the Will at the time. Ms. Oakley issued a counterclaim on the basis that her sister had validly revoked her Will and had died intestate.
The Higher Court found that Mrs. Keats had validly destroyed the Will: whilst she had not personally torn it completely in half, her nod to Ms. Webb amounted to sufficient authorization and intention for the destruction to be completed. Doing so removed the claimants from the Will, which aligned with Mrs. Keats’ instructions for the new draft Will; whilst she did not execute this Will, she did not express any revocation or alteration of those instructions. It was found from this that Mrs. Keats had intended to destroy the Will.
Crucially, it was also found, thanks to the evidence provided by Ms. Webb’s detailed note of the event, that Mrs. Keats did have the requisite capacity to destroy the Will, albeit that the revocation was found to have taken place during a ‘lucid interval’. Mrs. Keats was therefore found to have died intestate, and accordingly her estate was left to her sister, as her closest surviving relative under the intestacy rules, and as Mrs. Keats had intended to do in the draft Will.
Destroying the Will by a Writing
By far the preferable method to revoke a Will is to make a new one. Keep in mind that if you fail to destroy all signed copies of the old Will, an argument can be made that it is still in effect. Further, if your destruction is only partial or ambiguous in what is revoked, it is likely to lead to extensive and expensive litigation.
By creating a new Will which specifically revokes the prior Will, that prior Will is fully superseded and voided (unless the new Will is somehow destroyed or revoked). The typical wording is, "This Last Will and Testament, dated, ________________, does herby revoke all prior Wills and Codicils and shall be the only valid Last Will and Testament....” Even if the prior Will somehow surfaces, the new Will shall prevail.
The new Will need not be created by an attorney and can be created using online forms if appropriate for your State.
Conclusion:
Oddly, some people hesitate to make a new Will, fearing the costs, delay, and attorney's fees that may accrue, instead hoping that tearing up the old copy will be enough. This is an odd approach since the cost of retaining counsel to draft a new Will, a few thousand at most, is a fraction of the sums at issue in the average estate plan.
And the cost of a Will contest is usually in the tens or hundreds of thousands. The writer well remembers an older litigator he worked with when he was a young attorney. The case was a Will contest in which the testator, to save money, wrote, "If X is gone, then the estate goes to Y." One of the heirs argued that instead of meaning predeceased, the phrase meant not physically close by taking care of the decedent. That argument lost...but only after a year of litigation costing, in today's dollars, over a hundred thousand dollars.
The litigator laughed at the case. “That fellow put fifty thousand dollars in my pocket trying to save five hundred dollars in fees. My best friend, he was.”