Revoking a Will

In this post, I discuss the process of revoking a will to ensure its provisions are not carried out.

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Everyone changes his or her mind from time to time, and the area of estate planning is no exception to this general rule. Whether as a result of a change in your personal circumstances or in your relationship to your will’s beneficiaries, you may, after writing your will, decide that its provisions no longer fulfill your desires. Revoking a will can therefore be a desirable course of action.

Since wills are good forever, the different ways of revoking a will can be a valuable bit of knowledge. So, in this post, I will discuss the various ways of revoking a will.

Revoking a Will by a Subsequent Writing

You may revoke a will by a subsequent writing. If not done properly, however, the subsequent writing may not be effective for revoking a will, so this must be done carefully.

Before determining whether a subsequent writing revokes a will, it must first be determined if the writing is a revocation or a codicil—a codicil being an amendment to the will. A codicil should be able to stand on its own, while a revocation generally cannot. Rather, a revocation can generally only be understood in relation to the previous will that is the subject of the revocation.

If the second writing disposes of property not disposed of by the first will, then the writing is a codicil. While it may change the provisions of the first will, it will not be effective to revoke it.

Whether a revocation or a codicil, however, to have any effect a subsequent writing must meet the same execution requirements as a will. This means all the same formalities must be followed. It is therefore much easier to revoke a will by a physical act, as discussed below.

Revocation by subsequent writing may be desirable, however, if the testator is concerned about removing all doubt that the will was in fact revoked, or where the testator desires to make a partial revocation. (A partial revocation generally occurs where the testator revokes an individual gift in the will but keeps the remainder of the will in place.)

Revoking a Will by Physical Act

A testator may revoke a will by physical act quite easily. The testator merely has to destroy the will, whether that be by tearing it up, shredding it, burning it, or whatever. It is a good idea, however, to simply create a new will revoking the old one because it removes all doubt of the first will’s validity.

Physically destroying an old will after the formation of a new will can serve you well, but destroying a will can create issues of doubt when the destruction would result in intestacy. In a pinch, however, physically destroying the will may serve you well, particularly if evidence of the destruction is readily accessible.

Lost Wills

Lost wills can serve as one method of revoking a will, albeit unintentionally. A lost will, however, is still a valid will. It can, in fact, still be probated, though the contents of the will must be demonstrated by clear and convincing evidence. This is a pretty high standard, so as a general matter of practicality, a lost will is a revoked will.

Dependent Relative Revocation (DRR)

Dependent relative revocation, or DRR, is not a method of revoking a will. Rather, it is a way to address a situation where an attempt to revoke a will proved invalid. Dependent relative revocation is applicable where a testator revokes a will by a second will but then that second will is later deemed invalid.

In this situation, the revocation of the first is deemed invalid because the second will—the document that revoked the first will—was ineffective. Therefore, the first will will be considered the valid will.

An interesting situation can arise, however, where the testator executes a valid second will to revoke the first will but then changes his or her mind and revokes the second will in order to revive the first will.

So for example, let’s say that John Smith wrote a will leaving everything to his two children. Later, he and his oldest child have a falling out, so John Smith executes a valid second will disinheriting the first child. Some time later, John Smith and his oldest child reconcile, so John Smith revokes his second will with the intent that his first will will once again be his valid will.

Different jurisdictions have handled this situation differently.

1. Some jurisdictions hold that there was never any revocation of the first will because nothing goes into effect until the testator dies.
2. Other jurisdictions hold that the first will is revived if the testator revokes the second will with the intent of reviving the first will.
3. Finally, still other jurisdictions, including Arkansas, hold that the first will was permanently revoked by the second will. It can therefore only be revived by its re-execution with the accompanying formalities. Revoking the second will is simply not sufficient.

Effects of Divorce

Partial revocation of a will can occur automatically in Arkansas as a result of divorce. Divorce nullifies any bequests to a former spouse, even if the will was executed prior to the marriage.