Revoking a Will Litigation North Carolina
Life changes quickly. Often, these changes mean that testator’s last will and testament no longer reflects her desire for the distribution of property after her death. When that happens, she may want to revoke her prior will. The testator has several options to consider if she wants to revoke her prior will.
If a testator (or maker of the will) wants to revoke a Last Will & Testament, she should #1 go see her attorney. This is not an action to be done without sound legal advice. There are consequences to this action.
Sometimes wills go missing. Sometimes the wills get marked or scratched through. This leads to questions and estate litigation as to the intention of the testator to mark, destroy, or revoke the will.
In North Carolina, the revocation of written wills is governed by N.C. Gen. Stat. § 31-5.1. Revocation falls under two main categories: (1) subsequent writings, and (2) destruction.
SUBSEQUENT WRITINGS: The most common way to revoke a will is for the testator to execute another will. Typically, when a testator executes her last will and testament, she will include language that states that by executing the current will, she is revoking all prior wills and codicils. As long as she has the capacity to execute a will, and complies with the statutory requirements for will formalities, her revocation will be effective.
However, the fact that a testator executed a subsequent will does not, by itself, mean that the testator intended to revoke the prior will. The second will must either contain revoking language or contradict the terms of the old will in order to be an effective revocation.
DESTRUCTION: A testator does not need to execute a subsequent writing to revoke a prior will. She may burn, tear, cancel, obliterate, or destroy the will. She may either perform the destructive action herself, or direct another to perform it for her in her presence. However, any act of destroying the will must be done with the intent and purpose to revoke. A pure accident will not be effective to revoke a will.
Whether the testator chooses to execute a subsequent writing or destroy her will, she must possess the mental capacity to do so. The mental capacity required to revoke a will is the same as that required to execute a will. A testator must: (1) comprehend the natural objects of her bounty, (2) understands the kind, nature and extent of her property, (3) know the manner in which she desires her act to take effect, and (4) realize the effect her act will have upon his estate. If any of the four requirements is unmet, then the revocation will be ineffective. Just as the testator can lack capacity to make a will, she can also lack capacity to revoke it.
What happens once a testator successfully revokes her will? In the case of a subsequent writing, the new will takes effect. Upon the testator’s death, the new will controls the disposition of her property and the old will is of no effect.
In the case of destruction, however, a testator may not have another will. If she revoked her will and died before executing a new will, it could be as though the testator died “intestate.” This means that her property would be distributed by a schedule prescribed by the NC Intestate Statutes, since she had no will. Intestacy does not mean that the government gets all of a testator’s property, but it does mean that the testator’s wishes during her life do not control the division of her property after her death.
The estate planning and litigation attorneys W. Kirk Sanders and Benjamin C. McManus at Hendrick Bryant have experience in dealing with revoked wills and other estate issues.
Call the North Carolina estate litigation attorneys at Hendrick Bryant today at (336) 723-7200 to set up an appointment to discuss your matter.
Revoking a will
North Carolina Estate Litigation Attorney