In Estate of Boyajian, the Court of Appeal held that a document purporting to revoke all prior estate planning instruments, but not itself creating a new will, failed to satisfy the statutory requirements for a valid revocation. The Court explained that the document neither effectuated revocation through the execution of a subsequent will, which requires a beneficiary designation, nor through cancellation, which requires physical alteration of a will.
Estate of Boyajian Overview: Meddling Brother Attempts to Revoke Mom’s Will
The decedent executed a handwritten will in 2006 leaving her entire estate to one of her four children. In 2016, her son prepared a document titled “Revocation of Powers of Attorney and Estate Planning Documents” (“Revocation Document”), which purported to revoke all estate planning documents previously executed, including wills. The document was notarized but not witnessed, did not make any donative transfers, and was never written on, attached to, or otherwise physically connected to the handwritten will. The decedent died in 2020.
The Probate Court Incorrectly Determines that the Revocation Document Cancelled the 2006 Will
After the favored daughter petitioned to probate the 2006 will, the son contested, arguing that the later document revoked it. Following trial, the probate court agreed, concluding that the Revocation Document constituted a “cancellation” under Probate Code section 6120(b) even though no physical act had been performed on the will.
The Court of Appeal Reversed, Determining that The Revocation Document Did Not Actually Revoke the Will, as It Was Not a Subsequent Will Nor a Physical Alteration of the Existing Will
The daughter appealed, meaning that the Court of Appeal would review the probate court’s decision.
Probate Code section 6120 permits revocation of a will only in two ways: (1) by execution of a subsequent will; or (2) by burning, tearing, canceling, obliterating, or destroying the will with intent to revoke. The Court explained that neither method in the case was satisfied.
- A Standalone Revocation Is Not a “Subsequent Will”
The son argued that the revocation document qualified as a subsequent will under Probate Code section 6120(a). The court rejected the argument for several reasons. First, in order to be considered a will, a document must contain “testamentary intent.” Under Probate Code section 45, testamentary intent requires a revocable disposition of property effective at death. The revocation document made no beneficiary designation and disposed of no property, and consequently, made no disposition effective at death. It revoked prior instruments, but it did nothing else. - The Document Failed to Satisfy the Execution Requirements for a Will
As a typewritten instrument, it was required to be witnessed by two individuals under Probate Code section 6110(c)(1). It was not. Nor could the defect be cured under California’s harmless error statute. While the Uniform Probate Code extends harmless error principles to revocations, California declined to adopt that language, reflecting a legislative decision to retain strict formalities in this context.
Finally, the Court noted the absence of any California authority giving effect to a standalone revocation that did not also include a donative transfer or revocable disposition upon death.
Cancellation by Physical Alteration of a Subsequent Will Is Only Satisfied by Destroying or Physically Marking the Will
With respect to cancellation, the Court confirmed longstanding case law holding that a physical act performed on the will itself is necessary. Historically, this has meant marking, defacing, or even “criss‑crossing” the will, thus signifying the intent to revoke it. A standalone document merely expressing intent to revoke a will—no matter how clear—does not affect cancellation where the will itself remains untouched. Based on the Court of Appeal’s reasoning, it reversed the probate court’s decision.
Why This Matters
Estate of Boyajian underscores the small nuances that could make an enormous difference in a probate dispute. In this matter, we learned that a separate document intended solely to revoke prior wills is invalid.
For estate planners, the decision reinforces the importance of effectuating revocation through a properly executed new will or a statutorily compliant physical act affecting the existing will. For probate litigators, the case confirms that revocation arguments must be grounded in the statutory framework of Probate Code section 6120, not merely evidence of intent.
Key Takeaways
- A document that merely purported to revoke a prior will, without disposing of property, is not a “subsequent will.”
- Revocation by “cancellation” requires a physical act performed on the will itself.
- Even if a document makes it clear that the intent was to revoke a will, this alone is insufficient to revoke a will, as strict statutory compliance is required.
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