Individual state statutes set the rules for making, revoking, and probating last wills and testaments. An individual who makes a will, called a testator, generally has the power to revoke a will during his lifetime. After death, revocation depends on factors such as whether the will was made jointly or by one person and what the terms of the will are.
Will Revocations after Death
A testator who makes a will may revoke it by completing an act that shows a clear intention to revoke. For example, acts such as tearing, burning, placing an X across pages, and making a new will are valid methods of revocation. After the testator's death, if a court cannot verify any clear act that shows the testator's intent to revoke, the will remains effective. Another person may not revoke a testator's will after the testator dies.
Joint Wills and Revocation After Death
A married couple may choose to make one joint will. Most states automatically allow revocation of joint wills after the death of a spouse. Many also permit the terms of a joint will to expressly state that it may not be revoked after the death of the first spouse. An individual considering a joint will should research his state's probate laws to determine if a joint will automatically becomes irrevocable upon the first spouse's death or if the will must contain specific language to that effect.
Revocation and Will Contests
A will that is intact at the time of a testator's death may be set aside by a court after death. This typically occurs when an heir challenges or contests the will, asking a court to overturn it. Courts will only set aside a will for limited reasons. For example, a court will not overturn a will merely because a disgruntled heir feels she was treated unfairly. A court can, however, invalidate a will if an heir can show the testator was fraudulently tricked into signing his will. By invalidating the will after a testator's death, the court treats it as if it had been effectively revoked during his lifetime.
Read More: Reasons to Contest a Will
Duress, Fraud, Mistake
A court may set aside a will if the testator signed under duress or undue influence. This means the testator did not sign the will freely. For example, the testator may have been threatened or taken advantage of at the time she signed it. Legal defects in a will, such as lack of witnesses or dating, are also examples of grounds for setting aside a will.
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.