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How (not) to Revoke a Will

tear paper

The act of revoking a Will seems like it ought to be fairly straightforward and noncontroversial. In most cases, (and ideally) a person revokes a current Will by simply executing a new Will that expressly revokes all prior wills and codicils. The later valid Will prevails. Simple and effective.

But there are other permitted methods for revoking a Will. Will revocation is governed by statute in the Illinois Probate Act at 755 ILCS 5/4-7(a), which provides four exclusive enumerated methods for will revocation:

A will may be revoked only (1) by burning, cancelling, tearing or obliterating it by the testator himself or by some person in his presence and by his direction and consent, (2) by the execution of a later will declaring the revocation, (3) by a later will to the extent that it is inconsistent with the prior will or (4) by the execution of an instrument declaring the revocation and signed and attested in the manner prescribed by this Article for the signing and attestation of a will.

Simple, right? But for purposes of revocation by cancellation — when is a will a will?

That was the question for the Second District in In Re Estate Tyler B. Brewer, 2015 IL App (2nd) 140706 (June 17, 2015).

Tyler created a Will on December 1, 1999, under which Tyler’s brother, Todney, was named executor and beneficiary. Tyler had two children, Hannah and Jordan. On September 22, 2012 — allegedly in contemplation of his impending death — Tyler attempted to cancel his 1999 Will by initialing the first page, striking material provisions and writing on the face of the document:

‘As of 9/22/12, this will is void. I am working on a new one that includes both Hannah and Jordan.’

These markings were made not on the original 1999 Will, but rather on an unsigned and unattested copy of the 1999 Will. In her attempt to support the cancellation theory, Hannah alleged that the original Will had been lost, misplaced or otherwise not in the possession of Tyler at the time of Tyler’s attempted revocation. Tyler died 10 months later in July 2013.

Is Tyler’s unsigned and unattested copy considered a ‘will’ for purposes of revocation by cancellation under 5/4-7(a)(1)? No, held the Second District Appellate Court.

The Court reasoned that under the plan language of the statute “a will may be revoked…by…cancelling…it” and that the pronoun ‘it’ refers back to a ‘will,’ which must meet specific statutory requirements in order to be a ‘will’ in the first place. Specifically, it must be signed and attested as required by statute, which Tyler’s canceled document was not.

Thus, the court held that an unsigned and unattested copy cannot be used for a revocation by cancellation. But what if the cancelled instrument had been a true copy of the (signed and attested) original? The court noted that its conclusion was supported by courts of other jurisdictions (5 cited) that have held that a revocatory act performed on any photocopy is legally ineffective. The result would have been the same had Tyler attempted to revoke his Will by burning, tearing or obliterating a copy.

Coincidentally, just last month I wrote about how a copy of a lost Will can be admitted to probate in limited situations where the proponent of the will can overcome the presumption of revocation. But we now know that while a copy of a will can be admitted to probate in certain situations, it cannot be used as a basis for revoking a will by cancellation.

Even if Tyler had lost his original, it’s not as if he had no way to revoke his Will. He still had the three other statutory methods of revocation at his disposal. While he couldn’t burn, cancel, tear or obliterate, he could have executed a new will revoking the old one (best method), or could have executed a signed and attested (two witnesses) instrument declaring revocation. In fact, had two witnesses been present for Tyler’s revocatory act and signing, and then signed Tyler’s attempted revocation of the unsigned and unattested copy, the revocation would (I believe) have been effective under 5/4-7(a)(4).

The moral of the story? When dealing with wills, strictly follow the Illinois Probate Act. And when revoking (or amending by codicil) a will, either act upon the original will or have a new instrument properly signed and attested.

Image courtesy of John Ott via Flickr