Revocation of Wills

          Over time, people may change their testamentary intentions and revoke prior wills and execute new wills.  Such revocations may be either partially or wholly effective in invalidating a prior will.  Let us discuss revocation of wills and how even a revoked will may sometimes be revived.

In California, a will can be revoked by a testator (“person making the will”) so long as he or she is of sound mind (Estate of Lang (1884) 65 Cal 19) and acts intentionally and voluntarily, i.e., without any duress, menace, fraud, or undue influence (Section 6104 Probate Code).  A testator can revoke his or her own will, in whole or in part, by physical acts or by, “[a] subsequent will which revokes the prior will or part expressly or by inconsistency” (section 6120(a) Probate Code). 

          In California, under section 6120 of the Probate Code, a will can be revoked by, “[b]eing burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it, by either the (1) testator or (2) another person in the testator’s presence and by the testator’s direction.”  Depending on the facts and circumstances, physical revocation can either wholly or partially revoke the will.

          Under section 6124 of the Probate Code, a “lost will” is presumed to have been destroyed by the testator with the intention to revoke the will, “[i]f the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor the duplicate original of the will can be found after the testator’s death, … .  This is a presumption affecting the burden of producing evidence.” 

The “lost will” presumption can be overcome by producing substantial evidence contrary to the decedent destroying the will.  For example, producing evidence that other persons besides the decedent had access to and motive to destroy the decedent’s will.

          California allows a lost will to be probated in certain circumstances.  Under section 8223 of the Probate Code, “[t]he petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance.”  A photocopy of the will can be attached to the petition and otherwise a statement of will’s contents.  If a duplicate original will can be found, then the will is not lost and the duplicate original can be probated.               

Next, a revoked will can be restored or revived under special circumstances.  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 with the intention to revive the earlier will.

Also, under the Doctrine of Dependent Relative Revocation, a will that is revoked in connection with the execution of a newer will is presumed to be revoked on the condition that the newer will is valid and effective (Estate of Marx (1917), 174 Cal. 762).  When applicable, the earlier revoked will becomes effective at least to the extent that the provisions of the later will are invalid or ineffective (Estate of Kaufman (1945) 25 Cal 2d 854).   

People who execute handwritten (holographic) wills may unintentionally create a situation where an earlier will is probated because the holographic will is inadequate.  Consider a handwritten will that makes specific gifts, but does not distribute the decedent’s entire estate.  Depending on the facts and circumstances an earlier will may be revived to avoid a partial intestacy of the decedent’s estate, i.e., where assets are distributed to heirs instead of to beneficiaries under the decedent’s will(s).

Having an attorney draft one’s will and revoke any earlier wills may provide better peace of mind that unintended outcomes are avoided.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.