Revocation of a Will

If you don’t like your Will, how do you revoke it? Tennessee law provides the answer. There are three ways to intentionally revoke a Will:

1. The maker of the Will, the ‘testator’, creates another Will that revokes the prior Will;
2. The testator creates a “document of revocation,” that has to be executed just like a Will [i.e. two witnesses and a notary] or is totally in the testator’s handwriting. If no new Will is then executed, the result will be that the person dies without a Will;
3. The testator intentionally burns, tears, cancels, obliterates or destroys the Will or directs a person to do so in the testator’s presence.

There is a fourth type of revocation that occurs automatically by operation of law. When the testator gets married and has a child after signing a Will. The reverse situation is not true: a divorce or annulment of a marriage does not revive a Will signed before the marriage.

The statute in question is Tenn. Code Annotated §32-1-201, which reads:

A will or any part thereof is revoked by:

(1) A subsequent will, other than a nuncupative* will, that revokes the prior will or part expressly or by inconsistency;

(2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, that revokes the prior will or part expressly;

(3) Being burned, torn, cancelled, 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; or

(4) Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will.

Just like creation of a Will, the revocation of a Will must also strictly follow the statute. For example, in one case, the Codicil to a Will (an amendment to a Will) was destroyed at the direction of the testator, but not in his presence. The Tennessee Supreme Court ruled the attempted revocation was ineffective.

Minor changes to a Will may be dealt with through a Codicil, but it must comply with the same formalities as the Will to be valid.

Although form Wills can be found on the internet, the procedures to create and revoke wills are not to be taken lightly. By the time a mistake is found, it is usually too late for a do-over to correct it.

* A “nuncupative will” (or oral Will) is a seldom encountered instrument and is defined in §32-1-106:

(a)  A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:

(1)  Declared to be the testator’s will by the testator before two (2) disinterested witnesses;

(2)  Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and

(3)  Submitted for probate within six (6) months after the death of the testator.

(b) The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).

(c)  A nuncupative will neither revokes nor changes an existing written will.