A person who writes a will as part of a larger estate plan may need to change the will from time to time depending on changes in the person’s life. In some cases, the person may need to completely redo the will and cancel a prior will in its entirety. There are several ways to revoke a will under Michigan law, and the most important factor is the intent of the testator.
A testator’s act of physical destruction of a will generally serves to revoke the will. Burning, tearing, canceling, obliterating, or destroying a will or a part of the will is taken as an indication that the testator intended to revoke the will. Even if these actions do not actually affect the words on the will, if they destroy part of the will, then the revocation will be recognized. Only original wills are recognized, and therefore, even if a photocopy of a destroyed will exists, it would not be accepted as a substitute will showing the testator’s intent.
For a revocation to be valid, the act destroying the will does not have to be carried out by the testator, but can be done by another person as long as it is at the direction of the testator. This may be a concern if the testator is physically incapacitated.
The testator can also revoke a will by executing a different will that is intended to supersede the original. However, if revoking a will by executing a new will, the testator has to be careful to ensure that the will replaces the prior will in its entirety. If a subsequent will only revokes some parts of a previous will, both wills may be accepted and their terms followed to the extent they do not contradict each other.
In some situations, it is best to write a new will that incorporates terms from a prior will that the testator wishes to keep, and then physically destroy the prior will. This would ensure that only one will is relied upon when the testator dies, and reduces the possibility of will challenges leading to one will being invalidated.
There are other bequests in a will that are revoked automatically as a matter of law. Bequests to a spouse when the couple is married can be revoked by a subsequent divorce. This also applies to a prior grant of power of attorney to a spouse before the divorce. If a person wants to leave some property to a former spouse, he or she can still do so, but he or she will need to update the will after the divorce is finalized in order to ensure that the bequest is honored. The terms of a will that are revoked after a divorce is finalized can also be revived if the testator remarries his or her former spouse.
Contact Us for Legal Assistance
If you want to make changes to a prior will, write a new will, or discuss other estate planning options, contact Resnick Law, P.C. to consult experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan.
(image courtesy of Joshua Newton)
