A last will and testament only takes effect upon the death of the testator. Until that moment, the testator is free to amend, revoke or replace the document at his or her total discretion. Whatever is in place at the time of death will be deemed to be the testator’s last will and testament (provided that the will is not void for other reasons such as mental incapacity, undue influence, lack of testamentary intent, etc.). If the testator had rewritten or revised his or her will at different times, then it’s possible that there are several versions of the document in existence. Which instruments would be valid for probate and which instruments would be considered revoked?
According to Michigan’s Estates and Protected Individuals Code, a will or part of a will is revoked by either of the following acts:
- (1) “Execution of a subsequent will that revokes the previous will or a part of the will expressly or by inconsistency.” MCL 700.2507(1)(a).
- If the subsequent will does not expressly revoke a previous will, the previous will is revoked by inconsistency if the testator intended it to be replaced. MCL 700.2507(2).
- The testator is presumed to have the subsequent will replace a previous will IF the subsequent will provides a complete disposition of the estate, unless the presumption is rebutted by clear and convincing evidence. MCL 700.2507(3).
- The testator is presumed to have the subsequent will supplement instead of replace a previous will IF the subsequent will does not provide a complete disposition of the estate, unless the presumption is rebutted by clear and convincing evidence. MCL 700.2507(4).
- (2) “Performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or a part of the will or if another individual performed the act in the testator’s conscious presence and by the testator’s direction.” MCL 700.2507(1)(b).
- A “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or a part of the will, WHETHER OR NOT the burn, tear, or cancellation touches any of the words on the will. Id. This can be a partial revocatory act or a wholly revocatory act.
- A proponent of a lost, destroyed or otherwise unavailable will who tries to admit a copy of the will to probate has the burden of proving that the missing will is in existence, was executed in the manner required by law, that all or part the contents of that will can be provided, and that the lost, destroyed or otherwise unavailable will was NOT revoked. MCL 700.3402.
A will is NOT revoked solely on the basis of a change in circumstances in the testator’s life after the will was created. MCL 700.2508.
However, a previously revoked will may be REVIVED under one of the following circumstances:
- “If a subsequent will that wholly revoked a previous will is later revoked by a revocatory act under section 2507(1)(b), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.” MCL 700.2509(1).
- “If a subsequent will that partly revoked a previous will is later revoked by a revocatory act under section 2507(1)(b), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.” MCL 700.2509(2).
- “If a subsequent will that revoked a previous will in whole or in part is later revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.” MCL 700.2509(3).
The contestant of a will has the burden of establishing revocation. MCL 700.3407(c).
As the statute states above, the testator can revoke a will in its entirety OR in part. A partial revocation is a trickier proposition because it may appear to the probate court that the original will document was altered, and the proponent of the will has the burden of showing that the alterations were the intent of the testator. Here are some circumstances where the appellate court has ruled on revocation of a will in whole or in part:
- In re Fox’s Estate, 192 Mich 699; 159 NW 332 (1916) – A contestant challenged the decedent’s last will where a clause (not surprisingly, a clause that would have bequeathed certain real estate to the contestant) was “wholly obliterated by the use of heavy black pencil lines”. The will has several “obliterating marks or interlineations” but the challenged clause was “more thoroughly obliterated” than the others and there was no question that it was marked at the hand of the testator. The contestant suggests that the markings of the will indicate that it should be revoked as a whole, not in part (perhaps to spite the proponent of the will). The Michigan Supreme Court upheld the revocation of the clause only, finding that “the power to revoke a will includes the power to revoke any part of it.” The testator’s intent to revoke that clause only was found when evidence showed the will was “found among the testator’s papers with lines drawn through or across certain phrases or clauses”. It does not matter if the cancellation was done by pencil or pen.
- In re Walsh’s Estate, 196 Mich 42; 163 NW 70 (1917) – Decedent’s brother retained a duplicate copy of a will executed in 1908, but a copy of this will could not be found among the testator’s personal effects. The decedent’s other brother (whose family was left out of the 1908 will) contested this document on the basis that it must have been revoked by the testator if he did not retain a copy. The Michigan Supreme Court held that the failure to find a copy in the custody of the decedent raises a presumption that the decedent destroyed the will with the intent of revoking it. In this case, the proponent of the will was able to rebut the presumption and admit the photocopy to probate where there was no evidence the testator’s affections to the devisees have changed, no evidence that the testator’s property had changed, and evidence that the testator gave a photocopy of the 1908 will to one of the executors before death with the instructions that she might want to use it some day.
- In re Houghten’s Estate, 310 Mich 613; 17 NW2d 774 (1945) – The proponent files for admission to probate a will appearing altered by a handwritten line crossing out one particular bequest clause and an additional handwritten bequest clause inserted. It is uncontroverted that this was the handwriting of the testator by all parties. The contestants argued that the line drawn through it was an act of cancellation or obliteration that revoked the whole will. The proponent argued that this act was an amendment and the altered will should be admitted in its current form. The Michigan Supreme Court determined that the single line was intended to be a partial revocation, not a full revocation, since the testator clearly intended to delete a single person from a bequest and substitute another. However, although the revocation is successful, the amendment fails because it was not re-executed and re-attested according to law. As a result, the rest of the document is admissible to probate but the failed bequest is subject to distribution under Michigan’s intestate succession laws.
- In re Bonkowksi’s Estate, 266 Mich 112; 253 NW 235 (1934) – A testator struck out one the devisees in the will and inserted the name of another, but did not properly re-execute the will. The proponent held it was either an amendment or a revocation, but the contestant argued the doctrine of dependent relative revocation in that the will was conditionally revoked with the intent that a new will be made (the failure of the condition means that there was no revocation and the original language should be honored). The Michigan Supreme Court upheld the original language, holding if a portion of a will is cancelled or obliterated with the intent to carry out a new disposition (but the new disposition fails to be legally effective), then there is no presumption of revocation and the original language will be respected.
- In re Taylor’s Estate, 323 Mich 101; 34 NW2d 474 (1948) – Contestant challenged the introduction of a will introduced by the proponent that was not found in the possession of the decedent. The decedent had actually removed the original will from safekeeping at the Wayne County Probate Court and took it to Florida two years prior to her death. The contestant properly argued that the failure of the proponent to find the will in the decedent’s custody at death raises the presumption that she destroyed the will with the intent to revoke it. The proponent introduced evidence of correspondence between her and the decedent prior to death revealing that the decedent had given a copy of the will to the proponent and wanted her to care for her affairs. The Michigan Supreme Court upheld the admission of this document as decedent’s will and that the presumption of revocation can be overcome by showing evidence of declarations by the testator that the will was not revoked (whether or not the presumption is rebutted is a question of fact).
- In re Francis’ Estate, 349 Mich 339; 84 NW2d 782 (1957) – The decedent executed a will in Michigan in 1954, but then subsequently executed a second will in Florida in 1955 with a clause that revoked “all prior wills.” The 1955 second will was subsequently destroyed. The decedent’s son, the proponent of the 1954 will, argued that the destruction of the second will reinstated the terms of the prior will. The decedent’s widow, the contestant of the 1954 will, argued that the decedent died intestate, that the second will revoked the first will, and its subsequent destruction did not change the revocation. The Michigan Supreme Court found that the 1954 will had been properly revoked since, although the revoking instrument had been destroyed, the contestant was able to show evidence that the 1955 will existed, that it was executed according to law, and that she produced all or part of the contents of the will. Her evidence was the production of the carbon copy of the 1955 will retained by the drafting Florida attorney who testified that it was executed according to law. The doctrine of relative dependent revocation DOES NOT apply since the 1955 will was properly executed.
As you can see, the standards for determining whether a will was revoked are very fact-specific. Is that stray pen mark an accident or an intentional revocation? Is the physical change to the will a full revocation or a partial revocation? Was the revoked will revived when the subsequent will was cancelled? There are general rules that can be applied but most situations require subjective judgment calls. Furthermore, the probate judge or jury can assess the credibility of the witnesses or evidence produced by the proponent or contestant and make gut-instinct determinations on who to believe. Advancing such a challenge or defense will likely require the assistance of an experienced lawyer that understands the rules of evidence to introduce such proof into court.
If you are contemplating a challenge to a will, or you are a personal representative needing to defend against such a challenge, then do not hesitate to contact the knowledgeable attorneys at Kershaw, Vititoe & Jedinak PLC for assistance with your probate matter.