What is Required to Revoke a Will?
It is not uncommon for family members with a disagreement over the terms of a will or administration of an estate after a family members’ death to have disagreements over the terms of a will, and also for multiple will to be submitted to the probate court.
The Minnesota Court of Appeals recently released an unpublished opinion on the question of what it takes to revoke a prior will, and whether certain actions are sufficient to revoke a prior will. In In re the Estate of Esther Caroline Sullivan, Decedent, A14-2112 (Aug. 17, 2015), the Court of Appeals considered what constitutes a “revocatory act on the will” – meaning what does it take to revoke a prior, valid will, under the meaning put forth under Minn. Stat. § 524.2-507 (2014).
In Sullivan, three will were submitted to the probate court. The first was a valid will executed in 2006, witnessed by two disinterested individuals and signed by a notary public (“2006 Will”). The second alleged will was made in 2008 (“2008 Will”) when the testator made changes to a photocopy of the 2006 will and added handwritten words. The testator allegedly wrote on the top of the 2008 will that it was intended to replace the 2006 Will. In 2010, the testator allegedly attempted to execute another will (“2010 document”) using a downloaded form and completing provisions by hand. Obviously, each of the three wills had a proponent who advocated for their enforceability.
The probate court found that the testator had intended to revoke the 2006 will possibly in 2008, but definitely in 2010. Despite the testator’s intent, however, by failing to comply with statutory formalities of having witnesses present for a revocation of the prior will, the modifications were invalid even though there was evidence that the testator had approved of the modifications.
In particular, for a modification or a revocation to be effective, Minnesota statutes require that a modification has to be done to the original will, or that alternatively, the modifications could constitute new wills in their own right by meeting the requirements for execution of original wills.
Minnesota law provides that a will can be revoked in two ways:
by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this clause, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. . . .
Minn. Stat. § 524.2-507(a).
The Sullivan Court, analyzing all of the operative documents, concluded that the 2008 will was not a new will, because it did not meet the requirements of having witnesses and being notarized, and it was not revoked, because the alleged revocatory actions were not performed on the original will – just a copy of the original will. As the Court stated, “without witnesses or a revocatory act on the original will, we can only speculate as to the testator’s intent.”
The Court of Appeals’ opinion can be found at the following link: