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How to Revoke a Will

A will can be revoked by operation of law, by some physical act performed on the will with intent to revoke, or by a subsequent written instrument, meeting the statutory requirements.

Revocation or modification by operation of law refers to statutory provisions that modify or revoke will provisions in the event of marriage, divorce, birth or adoption of children, and the like.

In some states, marriage revokes a will. In Pennsylvania, marriage does not revoke a will. However, if marriage occurs after the will is made, unless the will is made in contemplation of the marriage, the surviving spouse is entitled to receive the share of the estate to which the surviving spouse would have been entitled if the deceased spouse had died intestate (unless the will gave the surviving spouse a greater share).

In Pennsylvania, divorce modifies a will. If a person becomes divorced after making a will, any provisions in the will for the former spouse are void and without effect.

A child born to or adopted by a testator after the execution of the will is entitled to receive an intestate share of all property not passing to the surviving spouse.

The law makes these "modifications" to wills because of the presumed change in the testator's intentions resulting from a fundamental change in the testator's situation. All of these provisions can be overcome by specific direction in a will. The law attempts to salvage the situation when the testator has neglected to change his or her will after a fundamental change in his or her circumstances.

A will can be revoked by physical act--by being burnt, torn, canceled, obliterated, or destroyed with the intention of revocation. The act must be done by the testator himself or by another person in his presence and by his express direction. If the act of revocation is done by any person other than the testator, it must be proved by the oaths of two witnesses.

Unfortunately, laypersons seem to have a propensity to perform physical acts on their wills. Numerous questions arise as to whether the intention to revoke was present and whether the act was done by the testator. Often, it is the import of the act itself that is questioned. If there is a large cross mark or "X" on one of the pages, or on the cover of the will, is this a revocation? Is a will "burned" if its edges are singed? What if some of the dispositive provisions are lined out? Was the intention to revoke the whole will or only the mutilated provisions? The cases are numerous and the results vary widely. You should NEVER write on your will. If you want to change your will, it must be done by making a new will or by an amendment to your will called a codicil. The new will or codicil must be signed with the same formalities as the original will. If you write on your will, or cross out provisions, you will either revoke it or you will do nothing. The one thing you will not do by writing on your will is modify it. Courts have held that the interlineation of one provision operates as a revocation of the entire will. I cannot stress this strongly enough. Do not attempt to change your will by writing on it or drawing lines through any of its provisions. Initialing the change does nothing.

If an original will cannot be found when a person dies, the question arises as to whether or not the will is simply misplaced or if it was destroyed with the intention to revoke it. The law in most states provides that there is a strong presumption that if the will cannot be found, it has been destroyed with the intention to revoke. If this presumption of revocation is successfully rebutted by testimony, then a copy of the will may be submitted for probate, or the will's provisions can be proved by testimony.

A will can be revoked by a subsequent will or codicil. Making a new will that revokes all prior wills is the method most often used to revoke prior wills. But suppose the new will is invalid. There is a principal called dependent relative revocation which holds that the old will is revoked only if the new will is valid. If a will is denied probate for any reason, such as incompetence, undue influence, fraud, or a deficiency in form or attestation, then the court must decide how to distribute the decedent's property. The choices of disposition are the next-to-last will, or the state's intestacy statute. The law presumes that the testator would prefer the provisions of the previous will. That presumption is open to rebuttal by an interested party, but the burden of proof is on that party. Thus, revocation by a new will only works if the new will survives.

I recommend that clients keep their old wills with the new ones they execute. One never knows what challenges may be made successfully to any will in the future. Usually, a testator would rather have his next to last will probated rather than relying on the state intestacy statute. Also, having the old wills is useful to show the pattern of disposition. This can be very important in cases of undue influence or incompetency.

Revocation by other writing means that the testator does not make a new will, but does make another document which revokes all prior wills and codicils. The writing must have all the formality of a will including witnesses. A handwritten document signed by the testator alone (called a holographic document) is another form of revocation accepted in some states, including Pennsylvania and New Jersey, but not any of our other neighbors. The entire document must be in the testator's handwriting, and the signature must come at the end of the document.

In the case of Thompson vs. Royall, Mrs. Kroll of Virginia told her lawyer she wanted to revoke her will. Her lawyer said she should keep the will as a basis for making a new one, so he (not Mrs. Kroll) made the following notation on the back of the document: "This will null and void and to be only held by H. P. Brittain instead of being destroyed as a memorandum for another will if I desire to make same. This 19 Sept., 1932." Mrs. Kroll then signed the statement. The same procedure was performed on the codicil to that will.

Mrs. Kroll died before a new will was executed. The court held that since the handwritten note did not obliterate any writing of the will (it was on the cover), and that it was not a holographic disposition (remember, she did not write the entire note, she only signed it), neither the will nor the codicil was revoked.

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