Vaght Boutris LLP

Revoking a Will

A testator may change or cancel a will at any time before he or she dies, as long as the testator has capacity. However, there must be concurrence between the testator’s intent to revoke the will and an act that revokes it. In other words, if you intend to revoke the will but don’t act on that intention, your will is not revoked. Conversely, if someone acts to revoke your will without your knowledge or direction, your will is not revoked.

Revoking a Will by Another Writing
One way to revoke a will is by a clause in another writing made and signed with the same formalities required for a will. Indeed, a will often contains a clause revoking all prior wills. A will can also be partially revoked by a will amendment known as a codicil.

Revoking a Will by Physical Act
Another way to revoke a will is by a physical act done with a current intent to revoke the will. The common physical acts are burning, tearing, or otherwise destroying the document, or obliterating the document's text.

It is important to remember that a will cannot be revoked accidentally. If a will is merely misplaced, lost, or stolen, it is not revoked. If the contents of the will can be reliably recreated from other sources, the will controls the disposition of the testator's estate.

In California, if a will cannot be found  and it was last in the possession of the testator, and the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, then it is presumed that the testator destroyed the will with the intent to revoke it.

Revoking a Will by Operation of Law
A will can be revoked, or partially revoked, by operation of law. 

A provision in a new will or codicil that contradicts a provision in an old will or codicil revokes the provision in the old will or codicil.  Also, in California, unless the will expressly provides otherwise, a final decree of dissolution of marriage or annulment (or a termination of a domestic partnership) automatically revokes gifts in the testator's will to the testator's spouse or domestic partner, and automatically revokes any provision of the will nominating the former spouse or domestic partner as executor.