Chapter B. Methods of Revocation

JurisdictionWashington
B. METHODS of REVOCATION

B.1. By Subsequent Instrument

RCW 11.12.040 provides for two methods of revocation, the first of which is "by a subsequent will that revokes, or partially revokes, the prior will expressly or by inconsistency"10 A will thus can be revoked by any appropriately worded subsequent instrument that

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satisfies the formal requirements of a will, including execution by a competent testator.11

Although the statute specifies a "will," it is not necessary that the revoking document have any dispositive provisions,12 and if it does, those provisions need not have any operative effect.13 Were this not the case, a testator who desired to revoke his or her will and to die intestate, but who could not locate the will to destroy it (or who wished to put his or her desire to revoke into writing), would have to execute another dispositive will and then destroy the latter to become intestate. "It is apparent that the legislature did not intend a construction that would lead to such absurd consequences."14 Therefore the definition of "will" for purposes of the revocation statute is not a technical definition, i.e., a formalized document disposing of some or all of the decedent's property, but is simply "a writing executed with the solemnity of a will."15

It is not necessary that the revoking document contain specific language of revocation, if it is clear that such was the testator's intention. In In re Neubert's Estate,16 the revoking will was lost. Because the quantum of proof necessary to prove its provisions and to give it operative effect was held to be greater than that necessary to prove its due execution,17 due execution was found to be proven but its content was not. Nevertheless, the court held that the execution of the later (lost) will had the effect of revoking the former.18 It is unclear whether this was so regardless of the lost will's content (it supposedly contained a revocation clause), or because the content had been proven for purposes of revoking the former will, but not for purposes of making its distributive provisions operative. Although the latter was clearly the better theory at the time,19 the

15 Id.

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subsequent amendment of RCW 11.12.040, requiring either express language or inconsistency, removed any doubt that a subsequent will lacking both revoking language and inconsistency would not automatically revoke a prior will.20 And although there is some indication in the cases that use of the formal language "last will and testament" may be a sufficient expression of an intent to revoke,21 if such an interpretation were permitted, it would be contrary to the position taken in most other jurisdictions.22 Because such language is usually "boilerplate" without intended substance, it seems to stretch its meaning somewhat to attribute to it a positive expression of intention to revoke any previous wills.

If the later will is totally inconsistent with the provisions of the earlier will, this suffices to revoke even if there is no mention of the previous will.23 This is known as an implied revocation. If, however, the later document is only partially inconsistent with the earlier will, it would be a codicil modifying or partially revoking the will.24

If there were any codicils to a will that was revoked in its entirety, the codicils are revoked as well, "unless revocation of a codicil would be contrary to the testator's intent."25

B.2. By Physical Act to the Document

The second method of revocation permitted by RCW 11.12.040 is as follows:

By being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in the presence and by the direction of the testator. If such act is done by any person other than the

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testator, the direction of the testator and the facts of such injury or destruction must be proved by two witnesses.

The key elements of this method will be examined in order.

B.2.a. Nature of the Act

Most of the acts that effectively revoke a will are self-explanatory. Generally such acts as "burning" or "tearing" need not affect any part of the will (such as the writing), as long as there was intent to revoke.26 Although there is no specific Washington case on point, it is generally accepted that "cancellation" refers to the drawing of lines through some part of the will.27 The traditional view is that it is not sufficient that the word "cancelled" be written on the will, at least if it does not touch the writing and is not formally executed.28 The Uniform Probate Code has declared that a burn, tear, or cancellation need not touch the words of the will to be effective.29 Although this may be understandable in the case of burning or tearing, "cancellation" is generally understood as crossing out or otherwise interfering with the writing.30 At the very least, it would be more difficult to prove that a line in the margin of a will was intended to revoke it (or a part of it?) than that a deliberate-appearing burn, tear, or crossing-out was so intended. It seems safe to say that cancellation should continue to be equated with crossing out until a Washington court has indicated otherwise.

Contrary to some jurisdictions, Washington apparently permits the use of a lead pencil to cancel a will.31 There is no need to render any of the words unreadable,32 "obliteration" being a separate, alternative method.

Note that even if the word "cancelled" (or the words "This will is revoked," etc.) is written in the margin, lacking execution it cannot be treated as a revocation by subsequent writing.

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B.2.b. Intent to Revoke

The testator must perform the act of burning, tearing, etc., animo revocandi—with the intent of revoking.33 If the testator acts without such intent (for example, accidentally tears or burns the will), there is no revocation, although there may be a question whether the will (or part of it) that no longer exists can be probated.34 Just as a will missing at the testator's death but last in his or her possession will be presumed destroyed by the testator with intent to revoke,35 a mutilated will found among the testator's effects will generally be refutably presumed to have been mutilated by the testator with intent to revoke.36 If the testator's intention was conditional upon some fact or occurrence that did not exist or come about, the revocation may not be valid.37

B.2.c. Revocation By a Person Other Than the Testator

The testator need not perform the revoking act personally, but if not, the statute sets out strict guidelines that must be followed to protect against possible fraudulent destruction. If the act is done by a third person, the testator must direct that person to do so, and it must be done in the testator's presence.38 It is sufficient that the testator responded affirmatively to the third person's suggestion that the latter destroy the will.39 Even if the testator asks that the will be destroyed, the act is ineffective if it is done outside the testator's presence.40 Furthermore, two witnesses must testify to the facts of the testator's direction and the will's revocation in the testator's presence.41 On the other hand, if the will is destroyed but

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ineffectively revoked, the requirements of the lost wills statute42 must be met to prove the will's contents, and failure to do so has the same practical effect as revocation. In light of these difficulties, to the extent possible a testator should be discouraged from revoking the will through the act of a third person; but if such a procedure is found to be necessary, he or she should be certain that at least two competent witnesses, likely to be available to testify following the testator's death, are recruited for the task. Care should also be taken that no interested witness is involved, because such a person may be unable to testify to the testator's directions due to the deadman's statute.43

Even if the testator personally commits the act of revocation on the will, there still must be proof that in fact it was the testator who committed the act and that he or she did so animo revocandi. Typical evidence would be the presence of some contemporaneous writing (such as an ineffective attempt to amend a partially revoked will by interlineation) or proof that the will was in the possession of the testator at the time that the act must have occurred.44 A presumption of revocation animo revocandi arises from the absence of a will last seen in the testator's possession.45

B.2.d. Partial Revocation

Because RCW 11.12.040 refers to revocation of a will "or any part thereof ," the statute has been interpreted as permitting partial revocation of a will by physical act, while the unrevoked part remains in effect.46 Thus when the testator crossed out most of a clause leaving money for the care of her dog, apparently because her dog had predeceased her, the "cancelled" clause was excluded from probate, together with a few uncancelled words at the end of the clause that by themselves made no sense, and the balance of the will (not otherwise cancelled) was upheld.47 Not all attempts

45 See §E.2.

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at partial revocation that follow one of the approved methods, however, are valid. For example, if the language that remains when the revoked portion of the will is eliminated does not leave an "understandable testamentary expression of the testator," the entire will is considered revoked.48 More importantly, the revocation of a gift to one beneficiary may have the effect of changing the nature or amount of gifts to other beneficiaries, as when the crossing out of a specific gift to A results in the enlargement of a residuary gift to B. When an attempted partial revocation has this effect of altering other gifts, it is invalid if it would constitute not just a revocation but a...

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