Revoking a Will (UBE)

Initially, it's important to understand that unlike some other instruments (for example, an irrevocable trust) a will is revocable up until the moment of decedent's death. The question then turns to the methods one might use to affect that revocation.

A will can be revoked by operation of law. If a person gets married after the creation of a will, the new spouse will take an intestate share (the share the new spouse would have received had there been no will) unless the will makes provision for the new spouse, the omission was intentional, or the will was made in contemplation of the marriage. Divorce or annulment revokes all gifts in favor of the former spouse. In other words, the will is read as if the former spouse had died earlier. This applies not only to gifts but to appointments as well (for example if the former spouse had been appointed as guardian, trustee, etc.)

Assume that a will is created, and after the creation of the will, a child is born. In such instances, the child will take an intestate share (similar to the rule above about a new spouse) unless the omission of the child in the will was intentional, the testator had other children at the time the will was created and devised a substantial amount of the estate to the other parent of the omitted child, or the testator provided for the omitted child by a transfer outside of the will in lieu of a gift in the will. These children born after the creation of a will are known as pretermitted children.

Another method for revoking a will is by a written instrument. All or part of a will may be revoked by a subsequent instrument executed with the same formalities as a will. If the subsequent instrument expressly revokes the will then the subsequent instrument applies; if there isn't that express revocation, then the two instruments (the will and the subsequent instrument) are read together with the subsequent instrument revoking the earlier will only to the extent of inconsistent provisions. 

Physical acts can suffice to revoke a will. Quite a few physical acts will revoke a will: burning, tearing, canceling or obliterating do the trick. But there must be intent at the time. The intent must be concurrent with the physical act, though the physical act may be performed by another if done at the testator's direction and in the testator's presence. 

A tricky issue that might come up is when there is no direct evidence of revocation but a question arises as to whether the will should be presumed revoked. If a will last seen in the testator's possession or under the testator's control cannot be found after death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked the will. Of course, since it's a rebuttable presumption, the presumption can be rebutted, and extrinsic evidence is admissible to overcome the presumption.

Lastly, if the presumption of revocation is  overcome but the will cannot be found, it might still be admitted to probate. For a lost (or destroyed) will to get admitted to probate does require that the following is proven: valid execution of the will, proof that the will was not in fact revoked, and proof of the contents of the will. You might wonder: how can the contents of a lost or revoked will be proven. It's not easy, but witnesses to the creation of that will might assist, as might a carbon copy or photocopy of the will.