Revocation of a Will

When you revoke a will it is no longer valid. At the time of the Will maker’s death their most recent valid Will determines how their estate will be distributed.  If their Will has been revoked, and a new Will hasn’t been made they will die intestate.

Importantly a Will may be revoked either voluntarily or by marriage and (in some jurisdictions) divorce.

A will may be revoked by:

  • The creation of another valid will or codicil;
  • a valid declaration in writing of an intention to revoke a will; or
  • the destruction of the will.

Revocation by another will or codicil

Most wills have a clause revoking prior wills, such as “I revoke all former testamentary dispositions”.

Revocation by declaration in writing

Any writing declaring an intention to revoke a will is sufficient, provided that the declaration is signed by the Will maker and witnessed in the same manner as a Will

Revocation by destruction

If a Will is intentionally destroyed by the Will maker it is considered to be revoked by destruction. A will destroyed by accident or mistake is not revoked (as the testator did not have the necessary intention to revoke that will).

Where a testator’s last will cannot be found, there is a presumption that it has been destroyed. However, if it can be proved:

  • that there was a will;
  • that it revoked all previous wills;
  • that it has not been destroyed;
  • the terms of the will; and
  • that it was correctly executed.

A court may decide that it is a valid Will and can be relied upon

In all of these instances the Will maker must have both the legal capacity, and intention to revoke the Will.

However revocation by marriage or divorce does not require an intention to revoke.

Revocation by marriage

Unless a Will is drafted clearly stating that it is on the contemplation of marriage it is revoked by the later marriage of the Will maker. If a new will is not made after marriage, the person will die intestate. 

Revocation by divorce

In some jurisdictions a Will is revoked by Divorce.

 

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