Sandra Reed’s Life Care Planning: Revoking a will easier said than done; do it right

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your

life planning questions.

Wily Willie makes a will shortly after graduating from law school, leaving all his worldly possessions to his live-in girlfriend, Sharon. Six months later Willie and Sharon break up and Willie, after recovering from the throes of depression, realizes the last thing on earth he wants is for Sharon to get one thin dime from him should he meet an early demise. Willie is convinced he won’t draw an easy breath until he has revoked that will. How’s he going to do it? What revokes a will?

50 Ways to Lose Your Lover; Just Three Ways to Revoke Your Will

Willie reads the Texas Probate Code, which he had only half-heartedly reviewed in preparation for the bar exam, and learns there may be 50 ways to lose your lover, but – at least in Texas — there are only three ways to revoke a valid will: (1) a subsequent writing; (2) a physical act; or (3) operation of law.

It sounds simple enough, but is it? If Willie revokes by method (1) or (2), he has to have intent to revoke the prior will independent of fraud or coercion. What does that mean? Well, for instance, if his wicked step-sister pulls her concealed handgun from her Prada purse and forces Willie at gunpoint to tear up the old will or write a will leaving everything to her, that subsequent will not be a valid revocation of the will benefiting Sharon. The reason:  instead of having independent intent to revoke his will, he was coerced into doing so.

But assuming Willie’s intent to revoke, what exactly does he do to revoke the will?

Revoking Will with Subsequent Writing

Willie figured out that the subsequent writing itself would have to clearly state his express intent to revoke the prior will. Then he realized that the writing would have to be executed with “like formalities” as the will. Willie understood that meant he has to sign the will in the presence of two people who sign as witnesses and can say he was of sound mind and understood what he was doing at the time he signed.

When Willie tried to look at the Texas law on what he would have to do, he got pretty confused about what those “like formalities” would be if he did anything less than make a new will. It surprised Willie to learn that one guy who wrote his lawyer and told him to destroy his will had not successfully revoked that will.

Willie felt a sense of relief when he realized the most foolproof subsequent writing to revoke the old will was a new will inconsistent with the old one. In other words, a will that left nothing to Sharon. If he created a new valid will, he didn’t have to mention that he was revoking the earlier will.

 Revoking Will with a Physical Act        

Willie discovered another way to revoke his old will. He could destroy the old will himself or cause it to be destroyed in his presence — as long as he had the intent to revoke the will favoring his ex-girlfriend. But just what acts would be required to destroy the will effectively? Willie learned he didn’t have to go so far as to shred the will.  He could do that, but he could tear it in up, or cut out his signature. He could write “canceled” or “void” or similar wording as long as he did this across every provision of the will giving away his property on death.

Willie wondered if he just crossed out the part about the girlfriend and left the rest of the will intact, if this would be sufficient to revoke it. To his surprise, it would not.  However, if he merely intended to destroy his will but accidentally destroys another document instead, the old will is not revoked. Maybe this seems obvious, but the Texas Supreme Court had to rule on this very issue in 1982.

Willie can do that but, if he doesn’t make a new will and dies without one, his property will pass by intestacy, not necessarily to the persons he would prefer.

Revoking Will by Operation of Law

If Willie had been married to his girlfriend and then divorced her instead of just shacking up and leaving out the back, Jack, then the portion of his will leaving property to his ex-girlfriend would have been revoked by operation of law. In other words, the Texas Probate Code provides that, if a will was made prior to a divorce, all provisions in favor of a spouse or a relative of a spouse not related to the will maker are treated as if these persons had failed to survive the person who made the will. If Willie had made someone else — his parents, for instance — the beneficiaries of his will in the event Sharon didn’t survive him, those contingent beneficiaries would take his property instead of Sharon, even though she was still alive at his death.

“Revival” of a Revoked Will

Suppose Willie had destroyed his will in favor of Sharon while they were having this spat that seemed to end all spats but, miracle of miracles, they reconciled and Willie wanted to revive the old will? Can he do it?

Yes, he can. But he must re-execute (sign and have witnessed) the will with the same formalities that were required for the will in the first place. Some states subscribe to a “revival doctrine,” which allows a person to revive a will without such requirements. Texas does not recognize this doctrine.

Bottom Line

In reality, the cleanest, safest course for Willie is to spend the money to write a fresh, new will that leaves his property to whomever he chooses and expressly stating in the new will that this later will is intended to revoke all prior wills.

Sandra W. Reed is an attorney practicing in Glen Rose.  She is of counsel with the elder law firm of Katten & Benson in Fort Worth.  If you have any questions, you may contact her by phone at 254-797-0211 or by email at swreed2@yahoo.com

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