§ 310 REVOCATION

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 310 Revocation

A will is an ambulatory document that may be revoked an any time by a competent testator.⁷⁷ The testator may expressly revoke a will as allowed by statute. Moreover, in certain cases the law presumes that the testator intended to revoke a will despite the lack of an express revocation, and so the will is effectively revoked by operation of law.

§ 310.1 By act

The SCPC allows the partial or complete revocation of a will by a subsequent will, which expressly or by implication (inconsistency) revokes, or by the physical act of burning, tearing, canceling, obliterating, or destroying, if accompanied by the intent to revoke.⁷⁸

Section 62-2-506. Revocation by writing or by act.

(a) A will or any part thereof is revoked:

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and by the testator's direction.

(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(1) The testator is presumed to have intended a subsequent will to replace rather than to supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.

(2) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will and each will is fully operative on the testator's death to the extent they are not inconsistent.

The prior South Carolina case law should continue to serve to construe the statutory requirements for effective revocation.⁷⁹

The 2013 amendments to section 2-506 confirm by statute that a subsequent will revokes a prior will in its entirety if the subsequent will expressly revokes the prior will or makes a complete disposition of the testator's estate. If, however, the subsequent will does not expressly revoke the prior will or make a complete disposition, then the subsequent will is a codicil that merely supplements rather than replaces the prior will. Thus, a codicil partially revokes, or amends, the prior will.

§ 310.1(a) Lost will

If a contestant can demonstrate that a testator had possession of or access to an original will that cannot be located, the usual burden on the contestant to prove that a will was invalid or revoked shifts to the proponent, who must prove the will was merely lost rather than intentionally revoked by the testator. This is often a difficult task that essentially involves proving the negative: that the testator did not revoke the will. If a will proponent is able to overcome the presumption that the will was revoked, the so-called lost will can then be probated.⁸⁰

In In re Estate of Pallister,⁸¹ the testator died at the age of 89, leaving a probate estate valued at an estimated $1.4 million. The original of the testator's last will, executed in 1999, could not be found, but no one disputed that it was valid upon execution. That will devised her estate to her late husband's sister, who died after the testator. The children of the testator's two brothers were the intestate heirs. Because the record contained no evidence of the testator's intent to revive any of her prior wills if she revoked her last will, the testator would die intestate because of section 2-508, which created a rebuttable presumption that the revocation of a will does not revive a prior will absent sufficient evidence of the testator's intent to revive. Thus, the heirs argued that, because the original will was not found, the applicable law presumed that the testator revoked her will.

The court stated the general rule that a will's proponent bears the burden of proving that a missing original will was not revoked. The court considered the pertinent facts to determine whether the proponent could overcome that presumption. Access of a nephew, one of the intestate heirs, to the testator's apartment was apparently important to the court. The nephew testified that he had seen the will on a table in her apartment a few months before her death, but that he did not know what happened to the will and that he did not destroy it. The court also noted the evidence indicated that the testator was an organized, sharp, and efficient person. After developing a close relationship with the nephew, the testator added him as a signatory to her bank and brokerage accounts and to her safe deposit box. That same day, the nephew transferred over $700,000 from those accounts to his own name. The nephew examined the testator's safe deposit box two days before she died, which he claimed was "out of curiosity." The nephew claimed that he could not find the testator's will, although she had kept her previous original wills in her safe deposit box. The drafting attorney testified that the nephew expressed anger that the testator's will had not named him as a primary beneficiary.

The court cited precedent for the proposition that "[t]he mere fact that a person who would benefit from destruction of a will possessed it or had access to it, standing alone, is not sufficient to rebut the presumption the testator himself revoked the will by destroying it." However, the court stated that the testator's love for the beneficiaries of the missing will serves as evidence that could override the presumption of revocation. The court observed that the testator's previous wills followed the same dispositive pattern and that no evidence demonstrated that she intended to change that pattern. The court concluded that the will's proponent presented clear and convincing evidence that the testator did not intend to revoke her will.

The court seemed to be affected by apparent discrepancies in the nephew's testimony and in the facts. The nephew testified that the execution of the account documents occurred with more witnesses and for a longer period of time than other testimony evinced. The testator regularly kept her wills in a safe deposit box, and her apartment was unusually disorganized at her death. The nephew expressed his displeasure with the will and had unfettered access to the apartment and the safe deposit box. The nephew told the sister-in-law that he had never seen the will, yet testified that he had. And, although the court did not expressly say so, it could have been most bothered by the nephew's transfer to himself of over $700,000 from the joint accounts while the testator was still alive.

If the testator did not have access to or possession of the will, no presumption that the testator revoked the will exists. For example, in Golini v. Bolton,⁸² the testator executed her will in 1992. The will devised most of her estate to her nephew and her grandson rather than to her daughter. Although the original will was not found, a copy was filed with the probate court. The daughter contested the will, arguing that the law presumes that a testator revoked a will when the original cannot be found. The probate court determined that the testator returned the original will to her attorney's office before it was thereafter lost. Moreover, the probate court found that the testator thought she had possession of the original although she did not. Affirming the probate court, the circuit court concluded that a will contestant must first prove that a testator had access to the original before the presumption of revocation would apply.

The Court of Appeals also upheld the probate court. The court referred to evidence that the testator treated her nephew with love and affection while she did not get along with her daughter. The court looked to cases from other jurisdictions to adopt the rule that evidence demonstrating the testator's love for the will's beneficiaries weighs in favor of nonrevocation.

§ 310.2 By operation of law

§ 310.2(a) Marriage

The SCPC provides for partial revocation of a will triggered by the marriage of the testator subsequent to the execution of his will.⁸³ If the testator marries after the execution of his will and fails to provide by will for his spouse, the Code revokes his will to the extent necessary to provide the omitted spouse with the same share of the testator's estate as if the testator had died intestate. If the testator was survived by issue, the surviving spouse's share would be half of the estate; if the testator was not survived by issue, the surviving spouse's share would be the entire estate.⁸⁴ The omitted spouse will not receive the intestate share equivalent if the will indicates that the omission was intentional or if the testator provided for the spouse by nontestamentary transfer and indicated an intent that the nontestamentary transfer was in lieu of a testamentary transfer.⁸⁵

Section 62-2-301. Omitted spouse.

(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse, upon compliance with the provisions of subsection (c), shall receive the same share of the estate he would have received if the decedent left no will unless:

(1) it appears from the will that the omission was intentional; or

(2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of...