What Voids a Will?
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There are many reasons why a person may wish to revoke their will.
Perhaps they are getting married for the first time and would like to void their current will in order to create a new will that names their soon-to-be spouse as the primary beneficiary. Or, perhaps the new addition to the family is not a spouse but a child.
Perhaps the creator of a will (called the testator) sold several real estate properties while also purchasing some new ones so the distribution provisions of the old will need to be changed. Since the will already contains so many amendments (called codicils), the testator wants to replace the current will and its codicils with a new will. To execute a new valid will, however, the old will must be revoked.
While life-changing events are generally why people revoke their wills, their reasons for revocation are not important. What is important is that wills are revoked properly. If they are not, multiple wills belonging to the decedent could surface following their death, causing their surviving family members to have to engage in costly litigation to try to claim their rightful inheritances. Furthermore, the decedent’s final intentions surrounding the disposition of their property could fall by the wayside.
If your final intentions change and you wish to create a new will or codicil, revoking your current will is a necessary step. In this article, we will go over the process for how revoke a will. Your estate attorney can guide you if you have further questions about what voids a will.
What Does It Mean to Revoke a Will?
If you are seeking information about how to void a last will and testament, it’s likely because your plans have changed: You are seeking to add/remove beneficiaries, or perhaps you want to designate a new executor to administer your estate after your passing.
Revoking a will is the same as canceling the document. If a will is properly revoked, it will be like the will never existed, nor will it be considered valid in the eyes of the court.
A distinction should be made between revoking a will and invalidating a will through a will contest. Only testators can revoke their will, because once they die, the will becomes a legally binding document that cannot be changed or revoked. Testators, likewise, cannot revoke their will if they have become incapacitated.
Will contests, on the other hand, are brought after the testator has died by interested parties (which generally include beneficiaries, heirs or beneficiaries under a prior version of the will). The aim of a contest is to challenge the validity of the document. A beneficiary may seek a will contest, for example, if they believe the decedent had been unduly influenced into altering their will.
Keystone’s probate attorneys are highly skilled at litigating matters related to decedents’ wills and trusts, and have ample experience litigating issues surrounding the proper revocation of an estate plan document, such as a will or trust. If you have concerns about the validity of a decedent’s will or have another type of inheritance dispute, Keystone can help.
For What Reasons Can You Break a Will?
People create wills to ensure their assets will pass to the loved ones of their choosing when they die. But what if they had a falling out with a loved one who they had named as a beneficiary? What if the assets included in their will have been transferred into the name of their trust? What if they have adopted a child who they wish to add to their will? In all of these examples, the testator could benefit from revoking their will and creating a new one.
The most common reasons for amending (i.e., executing a codicil) or revoking a will include:
- The birth or death of a relative
- The acquisition of new property or assets
- The acquisition of a large amount of money
- The acquisition of a large amount of debt
- A marriage
- A divorce
- Moving to another state
- There are extensive amendments to an existing will
Can you break a will for any reason? From a legal standpoint, your reason for revoking a will is not important. All that is important is that you do it right. We discuss the how to properly revoke a will in the next section.
The three ways in which a will can be properly revoked include:
- By subsequent instrument (called implied revocation or express revocation)
- By destroying the old will
- By operation of law
In the following subsections, we break down the three ways to revoke a will. If you continue to have questions about how to revoke a will, it may be a good idea to consult with an estate and trust attorney.
Method #1: By Subsequent Instrument
Does a new will cancel an old will? The answer to that question is complicated.
When you create a new will, it doesn’t mean that your old will is automatically rendered null and void. To ensure that you old will is unequivocally canceled, it is a good idea to include language in your new will that expressly states your desire to revoke all prior wills (aka express revocation), or to create a new will that is completely inconsistent with the prior will (aka implied revocation).
For express revocation, you have to use the proper revocation of will format, which you will find below. Keep in mind that your phrasing can be different than what is used in our example; however, the gist of the statement should be the same.
Express Revocation of Will Format:
“I declare this will to be my last will and testament, and I revoke all prior wills and codicils.”
With implied revocation, there are no declarations within the will or codicil about your intention to make all prior wills and codicils null and void. For instance, if you executed a will before you got married in which you named your new spouse as the sole beneficiary of all your assets, it would be an implied revocation of the prior will since the new will and prior will are incompatible.
Codicils can change key elements of an existing will, which means that by executing one, you are essentially creating a new will. If codicils are so extensive that they are likely to be misinterpreted or cause confusion, it may be worth going the express revocation route (i.e., you would create a brand new will and include language within the document that states all prior wills and codicils are revoked).
Revoking an existing will through a subsequent will does not work unless the subsequent will is valid. In California, two disinterested witnesses are required to be present during the signing of a will in order for the will to be considered valid. Likewise, it is necessary for the testator to be of sound mind when signing their will.
Method #2: Complete Destruction
How do you make a will null and void through destruction? To revoke a will using this method, you have to utterly destroy the document (i.e., it should be clear to anyone who comes across it that it was meant to be obliterated and therefore is not valid). Common approaches for destroying a will include tearing it, shredding it or burning it.
So long as the original will and all copies of the instrument are destroyed, destroying a will can be an effective method of revocation, since it makes your intention to revoke the will abundantly clear. You might even use this method in conjunction with one of the two aforementioned methods of revoking a will to be extra certain that your prior will is not mistaken for your most recent will.
Method #3: Revocation by Operation of Law
Does a divorce revoke a will? Does a marriage revoke a will? Revoking a will by operation of law is not an action you carry out on your own; it happens automatically when a certain event — such as divorce, annulment or marriage — takes place. It is important to investigate your state laws to learn the impact marriages and divorces have on your will, as laws vary from state to state. If you are unsure, it is crucial you speak with an estate lawyer.
In California, divorces and annulments do not automatically revoke your existing will; however, they do create a legal presumption that any gifts made to your former spouse through your will should be revoked. Additionally, any sections of your will conferring general or special power of appointment (which authorizes another person to redirect to whom your assets will pass when you die) to your former spouse, or any section nominating them as a guardian, executor, trustee or conservator may also be rendered null and void. After divorce, if you wish to make gifts to your former spouse, confer power of appointment to them, or nominate them to a fiduciary role, it will be necessary for you to create a new will that makes your intentions clear.
If you are divorced and relying on your will being revoked by operation of law, there is potential for problems to arise. For example, your former spouse could argue that you did not intend to cancel their gift, which could cause your intended beneficiaries to have to engage in litigation with your former spouse to receive their rightful inheritances. So, rather than rely on revocation by operation of law, the most effective way to disinherit a former spouse would be by amending or revoking your will.
New marriages do not automatically revoke a preexisting will in California; however, surviving spouses who are not named as a beneficiary in their spouse’s will that was created prior to marriage may be considered “omitted spouses,” who generally are entitled to the same inheritance as the surviving spouses of decedents who died without a valid will under California’s intestate statutes.
If you are a surviving spouse who is at risk of not receiving the inheritance to which you are entitled from your deceased spouse’s estate you should get in touch with a probate lawyer, who can help enforce your rights.
What Voids a Will After Death?
Once the testator dies, their will cannot be revoked, as only the testator has the authority to revoke a will. If, however, it seems that a decedent’s will is invalid, you could object to its admission into probate. Or, if the will has already been admitted into probate, you could seek to revoke probate by challenging the will’s validity through a will contest.
To contest a will, you must have standing and grounds. Standing means that you have a financial stake in the outcome of the matter. If a decedent’s will being invalidated means that you would receive a larger inheritance, you have standing. If you stand to receive a smaller inheritance or no inheritance at all as a result of a contest, then you do not have standing.
The grounds for contesting a will are slightly more complicated, because it is necessary for misconduct or error to have played a role in the document’s creation or execution. Put simply, a will cannot be contested because you don’t like its terms.
Valid grounds for contesting a will include:
- Undue influence – Excessive persuasion was used to convince the decedent to create, amend or revoke their will, contrary to the decedent’s true intent.
- Lack of capacity – The decedent lacked the mental capacity to create, amend or revoke their will.
- Fraud – The decedent was deceived into creating a new will, amending their will or revoking their will.
- Forgery – A decedent’s will was fraudulently signed by someone other than the decedent.
- Lack of Due Execution – The legal protocol for executing a will was not followed precisely.
- Mistake – An error was made as to the nature of the document (e.g., the decedent believed they were executing a power of attorney when they were actually executing their will).
- Revocation – The decedent had previously revoked their will.
If you are interested in contesting a decedent’s will, Keystone’s will and trust contest attorneys can help. It is important you act quickly to bring your will contest petition because such claims are subject to strict deadlines.