A will is a legal tool that allows for the transfer of assets after one’s death. It can provide the creator with the ability to control their assets even when they are no longer present to do so themselves. A creator can change their will but must do so within the bounds of the law. This can lead to much confusion when beneficiaries find more than one will. Which will is the one that the courts will honor? A recent case provides an example of how California courts analyze this type of question.
How do I revoke an old will?
In this case, a 2006 will stated the parent wanted to leave everything to their daughter. However, the son presented a document from 2018 that stated it revoked the previous will and argued that all assets should go to him. Upon review, the appellate court stated it must apply the following requirements for revoking a will:
- A subsequent will must expressly or by inconsistency revoke the prior will, or
- Physical acts such as burning, tearing, canceling, obliterating, or destroying the will must accompany the intent to revoke.
The appellate court stated the 2018 document failed to meet these criteria. It did not physically alter the 2006 will, nor did it qualify as a subsequent will because it lacked a property transfer and was not witnessed by two parties as required by state law. Justice Nathan Scott emphasized that the revocation required a physical act, consistent with historical interpretations of the term “canceled.”
What is a subsequent will?
The court also examined whether the 2018 document could be considered a subsequent will under Probate Code §6120(a). Ultimately, they decided the document did not meet the definition of a “will” because it did not name a beneficiary or transfer property upon death and it lacked the necessary witness signatures as required by Probate Code §6110(c)(1).
The court rejected the argument that the 2018 document should be treated as a will under the 2008 amendment to §6110, which allows for certain technical errors if the testator’s intent is clear. The omission of a provision for revocation in the amendment indicated the legislature’s intent to maintain strict witness requirements.
This case underscores the complexities involved in estate planning and the revocation of wills. The court’s adherence to the strict requirements of the Probate Code demonstrates the necessity of understanding the legal nuances that apply to these issues and gathering sufficient evidence to support one’s case.