September 19, 2013

Revoking a Will

Occasionally a person will change their mind in life about something, e.g. what kind of career they want, where they want to live, when should they retire, what should they eat for dinner that night, etc. Equally true is that a person might decide to revoke their will and write a new one. The key is that the person correctly revoke their will so there is no confusion when they pass away. This is done to avoid the unenviable position of where the executor is confronted with competing wills and they are not sure which one is controlling.

California law provides for 2 methods to revoke a will, revocation by a subsequent written document or by destruction. Prob C § 6120.

For the former, a prior will can either be cancelled through written revocation,  such as by writing "I revoke all wills and codicils I have previously made" in the subsequent will or by writing a subsequent will that is inconsistent with the prior will. The prudent maneuver is to revoke the prior will via written instrument rather than by writing a totally new will because it avoids the need to interpret competing wills once the testator passes away. In short, it is best not to leave the will's interpretation to chance. 

For the latter, a will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.

A real-life example of how one testator decided to revoke their will involved the estate of Steven Wayne Stoker. Estate of Stoker (2011) 193 CA4th 236. In 1997, Mr. Stoker executed a will and a trust. However, a few years later, Mr. Stoker had what could be described as a change of heart. According to the opinion, 

"At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it."

To be clear, this colorful revocation by Mr. Stoker need not be replicated. Burning the will was sufficient alone. Presumably Mr. Stoker was unaware that his zealotry was not required by the California probate code. A simple "I revoke my prior will" on the 2005 will probably would have sufficed. Regardless, Mr. Stoker's unique method of revocation was effective and his 2005 will (which was the subject of the appeal) was admitted to probate instead of his 1997 will. Naturally I would probably never advise a client to revoke a will this way.