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Written by Thomas Upchurch
Despite its title, the will you drafted during an earlier life stage may not actually be your “last will and testament.”
Circumstances change, and when they do, your estate planning changes, too. Some common examples of reasons you might want to revoke your will include:
Some changes to your will can be made with the addition of a codicil—a legal document that makes an amendment to the will without revoking it in full. In other cases, the better solution is to draft a new will to replace the existing one. However, you may be surprised to learn that simply executing a new will doesn’t necessarily revoke the old one.
If it’s time to make a change, understanding the impact a new will or other methods of revocation will have on the validity of your existing will is critical. Generally, your best first step is to consult an experienced estate planning attorney to determine the best way to achieve your goals.
In some situations, a will may be revoked by operation of law. In other words, a will may become legally invalid because of a change in circumstances, even if you don’t actively make a change to the document.
For example: unless the document specifically directs otherwise, a spouse named in a will and subsequently divorced will be excluded as a matter of law. It’s important to discuss this type of revocation with your estate lawyer when you’re drafting your will—or, after the fact if you’ve already created a will–to ensure that you know when it may be necessary to update your will.
The focus of this post, however, is affirmative actions a testator may take to revoke a will. Under Florida law, there are two ways to revoke a will: revocation by writing and revocation by act. However, not every writing or act intended—or arguably intended—to revoke a will succeeds. Rather, specific forms or actions are typically required.
Florida Statutes §732.505 provides for revocation of a will by writing. That section sets forth two ways a person may revoke a will in writing.
First, a will may be revoked by “a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency.”
In plain English, this means that a later-executed valid will or codicil will supersede any previous will. Note, though, that this type of revocation doesn’t necessarily fully revoke the existing will. Instead, the probate court will reconcile the wills to the extent possible. Only sections of the previous will that cannot be reconciled with the new document will be considered revoked, and the outcome may be a hybrid of the original will and the later will.
The second type of revocation by writing is more straightforward and yields a simpler, more predictable outcome. That method involves revocation by “a subsequent will, or codicil, or other writing executed with the same formalities required by the execution of wills declaring the revocation.”
This provision is the reason that most wills drafted by estate lawyers include language such as “hereby revoking any former wills and codicils” in the opening lines of the document. That short addition to the text, when written properly and incorporated into an otherwise-valid will, serves to fully revoke any prior wills, eliminating the unpredictable complication of the court attempting to reconcile two wills.
Unfortunately, many people who attempt to revoke a will by writing fail, and that failure isn’t revealed until after the testator is deceased or incapacitated—too late to make the desired change. The requirements are very specific, and not just any written expression of intent to revoke a will suffices.
Aside from wills and codicils, the only type of writing that is effective to revoke a will is one that is “executed with the same formalities required for the execution of wills.” That means that a declaration revoking a will that is signed by the testator but is not properly witnessed likely won’t do the job. And, while courts have in some cases determined that a handwritten addition to the will declaring it void is sufficient, the analysis depends heavily on the court’s assessment of the testator’s intent.
There is no specific provision in the law that allows for revocation of a will through writing certain words, crossing out particular provisions, or otherwise marking up or notating the will. Generally, crossing out certain provisions nor making change notations in the margins will not be sufficient. Thus, there is no way for someone attempting to revoke a will in this way to know whether or not the revocation will be effective. In fact, there is a significant possibility that the effort will fail.
In most circumstances, the clearest and surest way to revoke a will is to work with an experienced estate planning attorney to draft a new will that explicitly revokes and replaces the existing will.
Florida Statute §732.506 provides that a will or codicil is revoked when “the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.”
On the surface, this provision sounds simple. But, in practice, revocation of a will by act is open to interpretation in many ways, and can easily go wrong. First, it must be clear that the testator not only intended the destruction or other defacement of the document, but that he or she intended that action to revoke the will.
Of course, once the testator has passed away, it may be difficult to determine how the will was destroyed, and with what intent. In fact, it may be difficult to prove that the testator destroyed the will or performed another listed act at all—the will could simply be missing, or could have been altered or destroyed by a family member or other interested party without the testator’s knowledge, over his objections, or after he passed away.
Another critical element is that the act must be performed by the testator, or by another acting at the testator’s direction and in his or her presence. These facts, too, may be difficult to prove once the testator has passed away—particularly if the person or persons who claim to have acted at the testator’s direction and in his or her presence benefit from the revocation of the will. The application of these requirements can be quite strict. For example, in one Florida case a testator attempted to revoke his will and reinstate his previous will by asking his wife and two other family members to destroy the later will. All three represented that they had done so, and that they had done so at the testator’s request. However, they left the room to retrieve and destroy the will. The appellate court ruled that the will had not been properly revoked because the actual destruction had not taken place in the testator’s presence.
In addition to the issue discussed above , some of the listed manners in which the will may be revoked by act are open to interpretation. For example, must the will be entirely burned to ashes, to the point of unreadability, or will a symbolic burning that doesn’t entirely destroy the document suffice? To what degree must the document be obscured to constitute “obliteration”? What extent and type of defacement fulfills the statutory requirement? Will tearing the will in have be sufficient to support revocation, or must the document be torn into small pieces?
The bottom line is that while the law provides for revocation of a will by any one of various acts of destruction and defacement, the efficacy of this approach to revocation is uncertain at best. Even when the act intended to revoke the will fulfills all requirements, it may be difficult to identify and prove after the testator’s death.
The statutory provision for revocation by writing requires specific form, but acts involving writing may also be deemed to constitute revocation by act. For example, writing “VOID” in thick black marker across each page of the will could be deemed defacement under the statute. To a layperson, it may be unclear whether this type of action falls under the revocation by act provision of the law or the section regarding revocation by writing.
This may seem an insignificant distinction, but in fact it matters whether a will or codicil is deemed to be revoked by writing or by act. That’s because revocation by act is an all or nothing proposition, whereas the revocation by writing section provides for the revocation of “[a] will or codicil, or any part of either…” Thus, a properly executed revocation by writing can excise a particular term from a will. For example, such a writing could revoke a specific bequest from a will without impacting the remainder of the document.
The best time for a testator to think about effective revocation of a will is before taking action, when he or she can get knowledgeable guidance about the best way to achieve his or her goals. But, that doesn’t always happen. When the deceased has attempted to revoke or partially revoke a will through self-help, rather by writing or by act, it is the personal representative, beneficiaries, and other interested parties who must manage the complications.
When interested parties disagree as to whether a will has effectively been revoked in whole or part and are unable to resolve the issue among themselves, the issue will generally be decided through a type of estate litigation known as a will contest. In a contest regarding revocation of a will, the probate court will determine whether or not the will was effectively revoked by analyzing the issues described above.
While this type of will contest is sometimes necessary if revocation is in question, it can be costly and time-consuming, cutting into the assets that would otherwise be distributed to beneficiaries. And, since the issues are complex and evidence may be difficult to assemble, this type of litigation is best handled by an experienced estate litigation attorney.
Ideally, though, anyone seeking to revoke a will and replace it or revert to a previous version will gather the information and get the professional assistance necessary from an experienced Will Contest Attorney to help loved ones avoid the cost and complication of a will contest.