REVOKING AND MODIFYING WILLS

IS THE LAST WILL REALLY THE LAST WILL?

The making of a valid last will and testament automatically revokes all previous wills and codicils. However, there are strict statutory requirements for the revocation of a prior will.

Subsequent Wills & Codicils to a Will

If properly drafted and signed, a valid will supersedes all prior wills, either by express provisions, or by necessary implication. Necessary implication is a low threshold, and can be satisfied as simply as providing a different distribution than the prior will. Essentially, if a valid will is created, it will automatically revoke all prior wills and codicils. The one major exception to this general rule is when the subsequent will is declared invalid by the court. When a last will is declared invalid, the most recent valid will is revived and takes the invalid will’s place as the operative testamentary instrument.

Rather than create entirely new wills whenever a change is desired, a will may be amended with a document called a "codicil."  Codicils are separate documents which are attached to wills in order to change one or more of their provisions. To be valid, codicils must be signed and executed the same way that wills are executed.  Although codicils may be useful for small changes, those who draft codicils without a lawyer may unintentionally contradict other terms of their wills, prompting probate litigation over the distribution of assets and other divisive issues.  Even when drafted and validly executed, codicils are often lost or separated from the wills to which they are attached, rendering them useless and invalid at the time of death.

Destruction of the Last Will and Testament

The testator herself, or someone in her presence and by her express direction, may revoke a will by destroying it. The acceptable means of destruction under the statute include "burning, canceling, tearing, or obliterating."

Revocation of a Will by Subsequent Marriage

When a testator is married after the execution of a will and such marriage is followed by the birth, adoption, or legitimization of a child by the testator, all wills executed prior to the marriage are revoked under Maryland law, provided that a child of the marriage or his descendant survives the testator. In this way, Maryland's Estates and Trusts law protects children of the subsequent marriage, even if there is an otherwise valid will in existence that excludes these children. A surviving spouse is afforded similar protection by her right to elect a "statutory share" of the deceased spouse’s estate. Rather than take the property left to her by the will, the surviving spouse may elect to take a one-third share of the net estate if there are surviving children or grandchildren. If there are no surviving descendants, the surviving spouse may elect a one-half share of the net estate. The surviving spouse’s right to elect a statutory share trumps any contrary language in a valid will. However, this right belongs to the spouse only, and is not transferable.

Although revocation is not a common ground for challenging wills, an initial inquiry must be made as to whether the will submitted for probate was revoked. The effect of a revoked will is to revive a prior will.

Losing Original Wills or Codicils

A will which was in the maker’s possession before her death, but which cannot be found after death, is considered to be revoked by the maker prior to death. While this may seem like an illogical rule, particularly when there are copies of the will readily available, one must consider that a common way to revoke a will is to destroy it. Because the maker is not around to say where the lost will may be when an estate is opened, the law presumes that it has been revoked.

If a person wishes to claim that the maker did not revoke the lost will, he must prove that it was lost or destroyed by accidental means. In these rare instances the Orphans’ Court may probate a copy of a will. The burden of persuasion is on the party who contends the lost will was not revoked. While absence of the will raises the rebuttable presumption that the testator destroyed it, the person last known to have been in possession has the burden of explaining what happened to the will.

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