WHAT IS A REVOCATION OF WILL?
A will is a legally binding document, created and signed by an individual, known as a “testator.” It is created to distribute a person’s property and assets upon their death. Revocation of a will refers to the act of revoking a will by its maker. When a will is legally revoked, it is considered to no longer have any legal value or force.
WHO IS IT FOR?
As people age, they may change their testamentary intentions and revoke prior wills and create new ones. These revocations can invalidate a prior will partially or completely.
California’s Probate Code Section 6104 says a testator (“person making the will”) may revoke their will providing they act voluntarily and intentionally with no undue influence, menace, or fraud (Section 6104).
WHEN CAN A WILL BE REVOKED?
Knowing when a will could be revoked is an essential part of having one. The following life events may lead you to consider revoking your will:
- Birth or death of relatives and family.
- Purchasing property, or new assets.
- Acquiring large volumes of money.
- Acquiring large volumes of debt.
- Changes to your marital status.
HOW TO REVOKE A WILL IN CALIFORNIA
Revoking a California Will
Will revocation is a distinct area of law. If you wish to revoke a Will in California, there are two alternatives:
- Revocate the previous Will by creating a new one
- Physically destroy the original Will.
Revocation by a New Will
Of the two options, option one is more popular and easier to use. It is common practice for will-writing documents to include language to the effect of “I hereby revoke all previous wills.”. This simple phrase suffices to revoke a prior will — provided that the new will is properly executed with all the requisite formalities of a valid California Will. Another way of putting it is that a valid, new will can revoke an outdated will.
If the new will includes provisions that are different from and in conflict with the first Will, the above sentence will still apply even if it is not included. In other words, if you leave your diamond ring to your daughter in Will one, but then create a new will leaving the same ring to your son, the new will effectively revokes the gift in the previous will.
That being said, as a rule of thumb, you should never rely on an inconsistency; it would be far better to state clearly what your wishes are regarding the original will.
Revocation by Physical Act
The revocation of a California will does not have to be done in writing. It is also possible to destroy a Will by physically burning, tearing, canceling, obliterating, or destroying it. However, the physical act must be performed by the Testator (the one who made the Will) or at least in his or her presence and under his or her direction. The will will be revoked as soon as a physical act is performed.
PRESUMPTION OF REVOCATION AND ITS PURPOSE UNDER CALIFORNIA LAW
Under section 6124 of the Probate Code, a “lost will” is presumed to have been destroyed by the testator to revoke the will. As long as the testator held the original will at the time of his death, the testator was competent to make a will until he died, and neither the original will nor a duplicate of it was found after he died — it is presumed the “lost will” was destroyed. Evidence must be produced to establish this presumption.
California allows a lost will to be probated in certain circumstances. Under section 8223 of the Probate Code, any petition for probate of a lost or destroyed will shall contain a written statement of those words or their substance. A photocopy of the will can be attached to the petition and otherwise a statement of the will’s contents.
In the event that a duplicate original will is found, the original will is not lost, and the duplicate original can be probated.
WHEN DOES IT BECOME NECESSARY TO OPPOSE THE “LOST WILL” PRESUMPTION
Producing substantial evidence opposing the decedent’s destruction of the will can defeat the “lost will” presumption. In such cases, proving that others besides the decedent actually had the will and had motive to destroy it supports reversing the presumption.
There are also special circumstances where a revoked will can be restored or revived. Under section 6123(a) of the Probate Code, if a will is revoked by a later will — the revoked will can be revived if the testator subsequently revokes the later will intending to revive the earlier will.
Under the Doctrine of Dependent Relative Revocation, a will that is revoked when a new will is executed is presumed revoked, provided the new will still holds (Estate of Marx (1917), 174 Cal. 762).
The person who executes a handwritten (holographic) will may unintentionally create a situation where an earlier will is probated as the holographic will is insufficient. You might want to consider a handwritten will that makes specific gifts, but doesn’t distribute the entire estate.
The revival of an earlier will may be necessary in certain situations, such as when assets are distributed to heirs instead of beneficiaries under the decedent’s earlier will(s). The best course of action is to have an attorney draft your will so that unintended results can be avoided.
WILL REVOCATION ATTORNEYS IN CALIFORNIA
We live in an uncertain world. Without a clear understanding of how to legally have your will revoked, you could end up facing unintended consequences if you mistakenly believe it has been revoked when actually it remains valid.
Do you need help revoking your will? We are here to help you with any of your estate planning needs. Give us a call today to hear what we can do for you.