Revoking a Will

Sometimes when you undergo a major life change, such as divorce, remarriage, winning the lottery, having more children, or getting the last child out of the house, it’s a better idea to rewrite your will from scratch rather than making a lot of small changes through codicils. It’s best to do this by executing a new will that states that it revokes the old one. There are two schools of thought about what to do about the old will. Some lawyers recommend that you destroy it, if possible in front of your lawyer and the witnesses of your new will. Others do not recommend destroying prior wills: A prior will is often very useful in avoiding arguments that there was undue influence. If there are a number of wills that have similar provisions, prior wills are often very good evidence.

When you write a new will, be sure to include the date it’s signed and executed, and put in a sentence that states that the new will revokes all previous wills. Otherwise, the court is likely to rule that the new one only revokes the old where the two conflict--which could cause problems. If you keep an unsigned copy of the old will with the new one, write on each page “revoked, superseded by will dated ____.” This provides a record in case any questions arise.

If you fail to change or rewrite your will to account for changes in your life, the courts will give as much effect to your old will as possible. Some changes may be accommodated by the law, regardless of what your will says. For example, if you have a new child and don’t explicitly say you don’t want her to inherit anything, then the law will probably give that child a share of your estate. Likewise a new spouse, who has the right to a certain percentage of the estate. This is called taking against the estate and is covered in chapters 14 and 15.

In some cases, though, assets that aren’t accounted for go into what’s called the residuary estate (see chapter 7 for more). That’s what’s taken care of by a paragraph of most wills that says that you leave everything else to your spouse, or St. Jude’s hospital, or whomever. It’s more likely, though, that you want that hot new roadster you bought last year to go to your 25-year-old son rather than to your 70-year-old widow, and that’s why it’s best to modify your will periodically to account for such after-acquired assets.