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Revoking a will - how to do it

LAST WEEK THIS column dealt briefly with the making of a will. Today I will focus on the revocation of a will. A will is a revocable instrument and may be revoked by the maker at any time during his or her lifetime.

Generally, a will is revoked by the maker's marriage. The first test is that the marriage must be valid. However, there are circumstances where a will can be made in contemplation of marriage. The will must show with whom the marriage is contemplated. What is important is that the maker's intention must be clear. On the other hand, a divorce does not revoke a will.

Subsequent will

A subsequent will or codicil may revoke a will. The mere fact of making another will does not automatically revoke the previous will, unless the latter will expressly revokes the former, or the two are incapable of standing together. It is not unusual to have a number of testamentary instruments presented to reflect the last will of the deceased. Generally, there is a revocation clause, which reads: "This will revokes all previous wills and codicils."

A will may also be revoked by burning, tearing or otherwise destroying it by the maker or by some person in his presence and direction, with the intention of revoking it. Note that the paper does not have to be completely torn but what is important is the intention of the maker.

You may also revoke a will by destroying the signature of the maker. Thus, if the signature of the maker is removed from the will by burning, tearing or cutting it away entirely, and it is done with the intention to revoke, any of the aforesaid actions will revoke the will.

In presence of maker

Where the will is destroyed by some one else, apart from the maker, it must be done in the presence of the maker and at his request and direction. If the destruction is done in the presence of the maker but without his authority, it is not effective, although he or she is present.

The court may determine the intention of the maker of the will to revoke wholly or partially any part by evidence of the expressed intentions of the maker and inference from the nature and extent of the act done, that is to say, the state and condition of the will.

Finally, there is also conditional revocation of will, which occurs when the maker of the will revokes his or her will as a preliminary to making a fresh will and with the intention that he or she will make a new, valid will. Therefore, if the maker dies before making a new, valid will, the court could order that the original will remains unrevoked, provided certain conditions are satisfied.

Have fun, making and revoking your will.

Keith N. Bishop is an attorney-at-law and partner in the law firm of Bishop & Fullerton.