- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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When you draw up a will as part of your estate plan, there may come a time when you quite naturally want to change it. Other times, a person may wish to revoke his will, or it may be contested.
How Do I Change My Will?
There Are Two Ways To Change A Will
- You can draft a new will, expressly revoking your last will or
- You can draft a codicil to your will.
What Is A Codicil?
Changing The Provisions In Your Will
A codicil is a supplement or addendum to your will that adds or deletes provisions or otherwise changes your will. It is subject to the same formal requirements as a will.
A codicil is merely a later will that does not wholly revoke the previous one. There can be as many codicils to a will as you like, each either superseding prior codicils or leaving them intact and further supplementing the will.
It would help if you did not make changes by crossing out parts of your will and adding in words or changing amounts or the names of beneficiaries.
These changes will probably not work and will lead to confusion as to your real wishes. You will only invite someone to challenge your will (in a “will contest”) by making these changes on the face of the will.
How Do I Revoke My Will?
Example of Attempted Revocation
“When I executed my will, I left the original with my lawyer and took an unsigned copy. I now want to revoke my will, but I do not want to draft a new will right now. I want to think things over for a while, but I know I don’t want my old will to stand. What should I do?”
You should promptly retrieve your will from your attorney and then revoke it physically, such as by tearing, burning, mutilating, or canceling. Do this in the presence of witnesses and tell them you are revoking your will.
Each state has rules regarding which acts will accomplish a revocation, so you should check with your attorney when you call on him for the will. Please don’t call your attorney and ask him to destroy the will.
To properly revoke a will by physical act, you must act or have it completed by someone at your direction and in your presence.
In some states that permit handwritten wills, you can revoke your will by writing a statement declaring that you are revoking your prior will and signing the statement. But as this will work in only some states that permit holographic wills, you are better off revoking physical activity if you are not ready to draft a new will.
What Is A Will Contest?
Challenging The Legality of The Will
A person who doesn’t get what they want from a will might file a lawsuit challenging the validity of a will. This is called a will “contest.”
What Happens If Someone Is Too Senile To Make A Will?
Example of Alleged Incapacity
“Dad’s will left me all his property. He wrote this will two years ago when he was 80 years old. I don’t think my dad knew what he was doing. My brother claims that dad was too old to execute a new will and that dad’s property should go to both of us under the will dad executed 20 years ago. Does he have a case?”
Not because of your dad’s age. There is no upper age limit after which one cannot make a will. The test is one of legal “capacity,” not age.
When your dad drafted his will two years ago, did he have the capacity to understand the nature and extent of his property holdings, who the “natural objects of his bounty” were, and that he was disposing of his property at death?
He probably had the legal capacity to execute a new will. Many people, even with physical limitations, remain remarkably coherent well into their 80’s and 90’s.
What Does Undue Influence Mean?
Example of Alleged Undue Influence
“Dad’s will left me all his property. He wrote his will two years ago when he was 80 years old. I have lived near dad for the last ten years, stopping in to see him at least twice a week. My brother, who lives across the country and calls dad only once a month, claims that dad’s will is invalid because of my close contact with dad. Is it possible that my dad was forced or unduly influenced by my brother?
If your brother files a will contest, to be successful, he will have to prove that:
- You “unduly influenced” and coerced your dad to get him to change his will.
- You committed fraud by knowingly telling your dad lies to get him to change his will.
- That you breached a confidential relationship, you had with your dad.
These arguments are tough to prove, but you should immediately see a lawyer if your brother brings such a lawsuit.
Is a “No-Contest” Clause Enforceable?
Example of Asserting a No-Contest Clause
“Mom’s will left my brother $25,000 and her car. The rest of mom’s property went to me. My brother claims that mom “lacked testamentary capacity” and her will resulted from my undue influence. Mom’s will contains a “no-contest” clause, which states that anyone who contests her will should take only $1. If my brother files a lawsuit, will he lose his gift?”
Whether your brother loses his gift depends on whether he is successful in his lawsuit. If he wins, the judge will throw out your mom’s will, and her property will pass according to an earlier will that might be found.
Some states strictly enforce “no-contest” clauses, meaning your bother would not get the $25,000 or the car. Some states do not like no-contest clauses and do not enforce them. In these states, even if your brother lost his lawsuit, he would take what your mom left him under her will.
Locate A Wills & Estate Lawyer
For more information on changing and revoking a will, consider consulting with an online and verified Wills and Estate lawyer.
