How to Properly Revoke Your Will
For most people, their primary concern during the estate planning process is to ensure their will and other estate planning documents say exactly what they want, giving property to their intended beneficiaries and nominating the appropriate people to act on behalf of their estate. But what about when someone wants to revoke a will they previously executed? Florida law provides specific guidelines for how to do this, and many may be surprised to learn there are a number of ways to revoke a will. This article will explore the different ways to revoke a will under Florida law and some potential risks to consider.
Revocation by Act
Revoking a will through action is what most people probably envision when they think about revoking a will—an agitated person telling a soon-to-be-former beneficiary that the will is revoked while performing some grandiose gesture like ripping it to shreds or setting it on fire. While that works, Florida law says a will (other than an electronic will) or codicil (an amendment to an existing will) is revoked when the testator/testatrix (the person who executed the will), with the intent and purpose of revocation, does any of the following:
Burns it;
Tears it up;
Cancels it;
Defaces it;
Obliterates it; or
Destroys it [1].
The testator/testatrix can also have another person do any of those things on his/her behalf so long as the testator/testatrix directs the other person to do it and is physically present when it is done [2]—telling your attorney to do it over the phone or by email is not enough.
Some of these are easier done than others and may more definitively show the intent to revoke. If a line is drawn across the first page, is that an intent to revoke the entire will or just an errant mark? If a will is ripped clean in half but the pieces were kept by the testator/testatrix, was that on purpose to revoke it or an accident? A court may be less likely to find that a testator/testatrix did these actions with the intent to revoke the whole will than if he/she burned or shredded the whole thing, making it completely unrecognizable.
For electronic wills and codicils, which are newer and less common in Florida, the rules are the same, but the testator/testatrix, or the person acting on their behalf and in their presence, has to do one of the following to the e-will/e-codicil:
Deletes it;
Cancels it;
Renders it unreadable; or
Obliterates it [3].
When revoking a will, intent is very important; there needs to be evidence that the act was done with the intent to revoke the will. Accidentally spilling coffee on it or ripping the bottom of one page by itself is not enough (though someone who stands to benefit from the revocation may argue otherwise).
If you want to revoke your will by action, the safest way is probably to shred it yourself, make sure you personally put the shredded pieces either in the trash or a burn bin, and ensure that the trash is removed from the premises or the contents of the burn bin are, in fact, burned. That way, no one can argue that you retained the pieces of the will as some sort of attempt to keep it in force and that the shredding was a mistake. And if you otherwise stored your will yourself and no one can find it after you pass, the presumption in Florida is that you destroyed your will with the intention of revoking it [4].
Revocation by Writing
While revoking a will by action is more dramatic and may appeal to those drawn to theatrics, revoking a previous will or codicil by executing another writing is the more common route in modern estate planning. In Florida, there are two ways to revoke a will or codicil (or particular parts of either) by a subsequent writing/document:
By executing a new will, codicil, or other writing with the same formalities required to execute a will, where the new document explicitly declares it revokes previous wills/codicils; or
By executing a new will or codicil that does not explicitly revoke previous wills/codicils but is inconsistent with the previous wills/codicils [5].
As you can probably guess, the first of the two options is the way to go, as it does not leave any room for misinterpretation. It is very common for the first line of a will to identify the testator/testatrix and then state that by executing the new will, he/she is revoking all previous wills and codicils. If this is not done, then when it comes time to probate the estate, a court will likely have to look at all wills and codicils executed by the testator/testatrix and figure out where they are inconsistent and where they can be read together to make a single plan of distribution, as the subsequent wills/codicils only revoke the parts of the previous wills/codicils that are inconsistent, not the entire documents. Since in most cases it was probably the testator/testatrix’s intention to revoke previous wills entirely when he/she executed the new one, this may very well result in a plan other than what the testator/testatrix actually intended, not to mention some upset and disappointed beneficiaries.
How Revoking a Will Affects Codicils and Previous Wills
When a will is revoked, it simultaneously revokes all codicils to that will [6]. But even if the testator/testatrix had previous wills that were revoked when the newly-revoked will was originally executed, the new revocation does not reinstate or revive the old wills—they stay revoked [7]. Essentially, by having now revoked all of his/her wills and codicils, the testator/testatrix is intestate (does not have a valid will) and his/her estate would be subject to the state’s intestacy laws to determine where his/her property goes when he/she dies (unless he/she later executes a new will).
How Revoking a Codicil Affects a Will
While revoking a will also immediately revokes all codicils to that will, the opposite is not necessarily true. Under Florida law, revoking a codicil is presumed to not also revoke the will the codicil amended and is instead presumed to reinstate the original will as it existed without the codicil [8]. So the codicil is basically treated as having never existed. Since this is only a presumption, evidence can be introduced that the testator/testatrix actually intended to revoke both the codicil and will [9]. But like any other time there is ambiguity, this will require a court hearing and introduce uncertainty into the outcome, which is likely what the testator/testatrix wanted to avoid in the first place by creating an estate plan.
Key Takeaways to Consider When Revoking Your Will
Florida law provides a number of different ways to revoke your will or codicil, but not all are equally clearcut and will result in the same treatment by a probate court. If you have made the decision to revoke your will/codicil, make sure to consider the following:
Are you going to revoke it in writing or by action?
Are you doing it in a manner that clearly shows your intent to anyone who may be looking at the situation later, like your beneficiaries or a judge?
By revoking the document, will you reinstate or revive a previous will? Do you mean to, or do you need to separately revoke that will as well?
Do you understand the full impact that the revocation may have, like becoming intestate?
If you have questions about how to revoke a will or codicil or other estate planning and probate matters, contact a Florida wills, trusts, and estates attorney to guide you through the process and ensure you avoid the many pitfalls of Florida probate law.
[1] § 732.506, Fla. Stat. (2024).
[2] Id.
[3] Id.
[4] See In re Washington’s Estate, 56 So.2d 545, 545 (Fla. 1952); Potts et al. v. American Legion Hospital for Crippled Children (In re Estate of Evers), 160 Fla. 225, 227 (Fla. 1948).
[5] § 732.505, Fla. Stat. (2024).
[6] § 732.509, Fla. Stat. (2024).
[7] § 732.508(1), Fla. Stat. (2024).
[8] § 732.508(2), Fla. Stat. (2024).
[9] Id.