In my last blog, I mentioned a case where a destroyed will was being considered for probate in West Palm Beach. Do you know how to invalidate your will? Did you know that even a destroyed will can be probated under certain circumstances?
How do I invalidate my Delray Beach will?
- When you want to take back your will or invalidate it, you are seeking revocation of your will.
- There are generally two ways to revoke (invalidate) your will in Florida.
- First you can create a subsequent testamentary instrument (will) executed with appropriate formalities.
- So what if the new will does not cover something like the residual clause?
- It only revokes the inconsistent parts of the prior will usually.
- The second way to revoke a will is a physical act such as burning, tearing, canceling, obliterating or some other act of destruction.
Probating a Destroyed Will
- In some rare instances you may revoke a will but the court may re-invoke it; can you think of any reasons why?
- Maybe the newer will was invalidated in a Palm Beach will contest due to undue influence, fraud or lack of testamentary capacity.
- How can the court probate a will that may not exist?!
- Well first of all, there are only certain instances where this is appropriate.
- A court has to find three things before it can consider using a will that it cannot see in front of it.
- First, you will have to prove the due execution of the will.
- How can you do this? Usually through testimony of witnesses.
- Next you have to explain to the court why you cannot produce the will and overcome and presumptions that the will should be revoked.
- Finally, the Palm Beach probate court will only act if the contents can be substantially proven.
- So if you have a photocopy or a very simple will that people can attest to you may still be in luck if your will was destroyed.
Estate of Stoker : Extreme Revocation
- In the California Appeals Court case Estate of Stoker, decided back in 2011, an issue arose as to whether a will had been properly revoked.
- The court noted that “[D]ecedent took his original copy of the 1997 will, urinated on it and then burned it. We hesitate to speculate how he accomplished the second act after the first. In any event, Decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will. “
Curious? Want to read more? Check out the entire case by clicking here.