Wills, Trusts, and Estates
Revoking a Will
Wills are ambulatory, meaning that they can be amended or revoked at any time.
A will can either be revoked by a subsequent writing or by physically destroying the will. Wills cannot be revoked orally.
A will can either be revoked by a subsequent writing by express revocation or by implied revocation.
Express Revocation
An express revocation is a revocation by subsequent writing in which the testator specifically says they revoke the will.
Most well-draft wills will start with an express revocation:
I, Matthew Miner, a resident of Champaign, IL, make this my will and revoke all prior wills and codicils.
Implied Revocation
An implied revocation occurs when a subsequent will is executed which is inconsistent with a prior will.
UPC § 2-507 treats subsequent wills that make a complete disposition as presumptively revoking the prior will by inconsistency, but if only part of the estate is disposed of under the new will, then anything not included in it but that is in the prior will will be disposed of according to the old one.
Physical Act Revocation
A will can be revoked by physically destroying the will.
If a will cannot be found and it was last known to be in the defendant's possession, it is presumed to be destroyed.
Just because it cannot be found does not mean that will be found to be revoked though.
A will can also be physically revoked by writing on the old will. E.g., crossing it out, writing "void" on it, etc.
In Virginia, the writing on the will must touch the writing in the will to be a valid revocation.
- Apparently this has supposedly changed.
Under UPC § 2-507(a)(2), a writing anywhere on the document can revoke it.
If a will is revoked, a codicil thereto can still be effective if it meets all the requirements for a will on its own.
Partial Revocation by Physical Act
In most states and under UPC § 2-507, part of a will can be revoked by, like, crossing out part of it. This can only be used to remove people though. One cannot increase the amounts given to specific people.
Dependent Relative Revocation
If a testator revokes his will based upon a faulty assumption, the revocation is presumed to be ineffective. R3P § 4.3.
E.g, if one revokes his old will and tries to make a new will because he believed something to have changed about the beneficiaries or if he believes the new will to be legally valid or if he believes the new will to distribute the property differently than it does, then the new will will not be followed and the old will will be.
This is to follow the testator's intent and to avoid intestacy.
The DRR presumption arises when there is a:
- Valid prior disposition,
- Purported revocation, and
- Either
- The revocation was accompanied by an alternate disposition stated in the revocation, which is invalid, or
- The revocation recites a mistake of fact (or law) (that we are assuming has a causal relationship to the revocation), and
- We believe that the testator would not desire the revocation if he knew that the alternative disposition fails or about the mistake of fact.
Just revoking a will with an intention to make a new will and failing to do so does not make the revocation ineffective unless the decedent took actual steps to complete the plan to make a new will. R3P § 4.3, Comment c.
If a later will intended to replace an earlier will contains provisions from the first will that are now ineffective because of state law, the revocation of those provisions from the first will is ineffective. They will apply. R3P § 4.3, Comment e.
Reviving a Will
UPC § 2-509
UPC § 2-509
- If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
- If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
- If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
- A will wholly revoked by a new will which is then itself physically revoked is not revived. It remains revoked.
- A will partially revoked by a new will which is then itself physically revoked is revived.
- A will wholly or partially revoked by a new will which is then itself revoked by yet another will is not revived besides to the extent said by the third will.
Divorce
UPC § 2-804 and nearly all states provide a presumption that a divorce revokes any provisions in a will giving to the former spouse. This includes Virginia. VA Code § 64.2-412.
The UPC also revokes as to all of the former spouse's relatives. Virginia does not.
UPC § 2-804 is not the majority rule.
Most states do not change life insurance beneficiaries on divorce. Divorce lawyers should be sure to get policies changed.
- Virginia does presumptively change life insurance on divorce. VA Code § 20-111.1.
UPC § 2-804 would, but this is not commonly adopted.