If I tear up, burn, shred or otherwise destroy my Will, is it revoked? It depends...
In California if you burn, tear, cancel, obliterate or destroy your own Will with the intent and for the purpose of revoking it, it is revoked. Note that you have to both 1) destroy it and 2) have the intent to revoke it.
You have to have the intent to revoke your Will. If your Will is destroyed accidentally, say in a house fire or by mistake, it will not be revoked. If someone else destroys your Will, it will not be revoked, regardless of their intent. If someone else tricks you to destroy your Will, it will not be revoked. If you destroy your Will, but you lack mental capacity, it will not be revoked.
You have to actually destroy your Will. If you intend to destroy your Will, but you never actually get around to destroying it, it is not revoked.
However, if you have full mental capacity and you decide that you want to revoke your Will, and you destroy it, it will be revoked. If you are not physically capable of destroying your Will and you ask someone else to do it for you, it will be revoked.
Effect of Divorce on Wills
If you divorce your spouse but your Will still gives something to your former spouse or nominates your former spouse as your Executor, those provisions will be revoked and interpreted as though your former spouse died before you. In this case, you do not need to destroy your Will or even to destroy those specific sections of it. This happens automatically once your divorce is final. The rest of your Will remains in full effect.
The same rules apply to registered domestic partnerships.
What happens if my loved ones cannot find my Will after my death; is it revoked?
If these three things are all true, the judge will presume that you revoked your Will:
1) Your loved ones try really hard, but they cannot locate the original signed Will or a copy of your signed Will.
2) The Will was last in your possession.
3) You were mentally competent until your death.
If someone presents credible evidence that you did not intend to revoke it, the judge will have to decide whether you intended to revoke it or not.
Unintentionally Revoking Your Will
Do not write on your original Will unless you intend to revoke it. If you are thinking of changing your Will, do not write on the original signed Will because if you write on your original Will (such as crossing out a beneficiary that has died or adding a name to your list of nominated Executors), a judge may think that you intended to revoke your entire Will.
If you are thinking about making changes and you feel the need to write them down, write the changes on a separate piece of paper. Remember that these changes will not be effective until you meet the requirements for making a new Will.
Do these Rules Apply to Other Estate Documents?
No, the California Probate Code sections that contain these laws (§§ 6120 to 6124) apply ONLY to Wills. If you want to revoke either your Trust, Financial Power of Attorney or Advance Health Care Directive, you will need to follow the rules for that particular document.
Because it is often hard to tell if someone intended to revoke their Will, the best practice is to simply write a new one and in your new Will state that you revoke any prior Wills.
If you are ill or elderly, you may decide to give a copy of your Will to the person you nominate first as your Executor so that they have a copy when they need it.
Ready to write your Will? Click here to get started.
P.S. Curious about the photo in this blog post? It’s a Will from 1670 written by John Jarfyd. It can be a little tricky to read, but I’ve deciphered some of it. The Will gives his land and money to family and friends, and he specifically makes sure to leave money to care for his “loving wife Margaret.” It appears that Mr. Jarfyd was a wealthy landowner and that he was religious. On the back of the Will, someone else (maybe a court clerk?) wrote “Probate John Jarfyd.” I don’t know much about the Will’s history, or where it was before it was gifted to me, but it hangs on my office wall.