Chapter 13.6 Revocation and Revival of Wills

• Jurisdiction: Washington

§ 13.6 REVOCATION AND REVIVAL OF WILLS

Revocation by the testator is one of the grounds identified by the Supreme Court in In re Estate of Gherra, 44 Wn.2d 277, 286, 267 P.2d 91 (1954), as a circumstance that renders a will inoperative in whole or in part but which need not be brought to the court's attention within the four-month time limit of the will contest statute.

(1) Revocation by subsequent will or physical act

A will may be revoked in whole or in part by a subsequent will that is properly executed under RCW 11.12.020. RCW 11.12.040(1)(a). Revocation of a will in its entirety revokes all of its codicils unless revocation of a codicil would be contrary to the testator's intent. RCW 11.12.040(2).

The court in In re Estate of Nelson, 85 Wn.2d 602, 537 P.2d 765 (1975), held that a will or codicil is presumed to have been revoked by the testator if it was last seen in the testator's possession and cannot be found following the testator's death. In Estate of Nelson, the court focused on the requisite proof of a lost will and predated amendments to RCW 11.20.070, which eliminated the requirement that a "lost will" be in existence at the time of the testator's death. 85 Wn.2d at 605-06. Although the presumption may have been implicitly questioned by the Supreme Court in In re Estate of Black, 153 Wn.2d 152, 161, 102 P.3d 796 (2004), a rejection of that presumption was not essential to the court's result in Estate of Black. However, the court in In re Estate of Bowers, 132 Wn.App. 334, 342-43, 131 P.3d 915 (2006), directly addressed the impact of the 1994 amendments to RCW 11.20.070 on the common-law revocation presumption:

There is no indication that the Legislature intended to supersede the presumption of revocation with the 1994 amendment. "The Legislature is presumed to be familiar with judicial interpretations of statutes, and absent an indication it intended to overrule a particular interpretation, amendments are presumed to be consistent with previous judicial decisions." Pudmaroff v. Allen, 138 Wn.2d 55, 64-65, 977 P.2d 574 (1999). We conclude the 1994 amendment to RCW 11.20.070(1) did not abandon the common-law presumption that a lost or destroyed will is revoked. As amended, the statute requires the proponent of a lost or destroyed will to prove it was not revoked.

(a) Express revocation in subsequent will

The revocation in a subsequent will may be express (e.g., "I hereby revoke all prior wills and codicils previously executed by me")

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or it may be accomplished by executing a new will with terms that are wholly inconsistent with the terms of a prior will. In the case of an express revocation, the writing must be executed with the formalities required of a will, as set forth in RCW 11.12.020.

(b) Revocation by inconsistent provisions

In the case of revocation by an inconsistent codicil, the codicil must also be executed as set forth in RCW 11.12.020. "Codicil means a will that modifies or partially revokes an existing earlier will. A codicil need not refer to or be attached to the earlier will." RCW 11.02.005(2); see also In re Estate of Bowechop, 52 Wn.App. 775, 764 P.2d 657 (1988) (because both wills and codicils must be executed with the same formalities, critical question is whether an instrument is meant to be a codicil or a will).

(c) Revocation by physical act

A will may also be revoked in whole or in part by the testator's act of burning, tearing, canceling, obliterating or destroying the will, with the intent of revoking it; the same acts, again with the intent of revoking the will, may also revoke a will if they are done by another person at the request of the testator and in his or her presence. RCW 11.12.040(1)(b). Revocation by a third person on the instruction of the testator and in the testator's presence must be proved by two witnesses. Id. Both the intent and the physical acts must combine to effectively revoke a will. Neither a physical act without the appropriate intent, nor the intent to revoke without the prescribed physical act, will be effective to revoke a will.

Because the deadman's statute, RCW 5.60.030, excludes testimony by a party in interest about that person's transactions with the decedent or any statement made by the decedent to the interested party, an interested party who has witnessed the destruction of a will with intent to revoke may be prohibited from testifying (i.e., from serving as one of the two witnesses required by RCW 11.12.040(1)(b)).

(d) Limitations on partial revocation

A testator's attempt to partially revoke a will may inadvertently result in a complete revocation if the language that remains does not leave an "understandable testamentary expression of the testator." In re Estate of Malloy, 134 Wn.2d 316, 324-27, 949 P.2d 804 (1998). Conversely, if the part of the will not revoked cannot operate as a new devise because it was not properly attested, then the attempt at

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partial revocation may be ineffective. And, if the attempt at revocation substantially increases a residuary bequest, the court may view the attempt as an improper alteration of the will rather than as an effective revocation of a part of the will. Id.

(2) Revocation by operation of law

Changed family circumstances, including afterborn children, subsequent marriage, or divorce can impact a will by operation of law, as discussed below.

(a) Impact of divorce on bequests under a will

Assertion of rights because of divorce will vary the provisions of a will but do not challenge its validity; hence, like claims of an omitted child or spouse, an action to enforce the revocation by operation of law of a bequest to an ex-spouse is not governed by the will contest statutes or their time limits. In the case of dissolution or termination of a marriage, RCW 11.12.051(1) "revokes" any disposition or gift by will in favor of the former spouse by providing:

If, after making a will, the testator's marriage or domestic partnership is dissolved, invalidated, or terminated, all provisions in the will in favor of or granting any interest or power to the testator's former spouse or former domestic partner are revoked, unless the will expressly provides otherwise. Provisions affected by this section must be interpreted, and property affected passes, as if the former spouse or former domestic partner failed to survive the testator, having died at the time of entry of the decree of dissolution or declaration of invalidity. Provisions revoked by this section are revived by the testator's remarriage to the former spouse or reregistration of the domestic partnership with the former domestic partner. Revocation of certain nonprobate transfers is provided under RCW 11.07.010.

Although "living separate and apart" (either with or without an accompanying decree of legal separation) may have an impact on the character of property acquired by either spouse under RCW 26.16.140, RCW 11.12.051 is triggered only by a decree of dissolution or declaration of invalidity. In contrast, RCW 11.125.100 provides that a power of attorney in favor of a...