How to Make a Will Null and Void

Have you ever heard the saying, “Where there’s a will, there’s a way”? Well, it’s true in more ways than one! When there’s a literal will, there’s an easy way for the courts to distribute your assets after you die! And while you might think of a will as something you write once and shove into a drawer until your still-living relatives have to dig it out again, these legal documents aren’t one and done. Life is always changing, and your will needs to reflect that! So, that begs a few questions: how exactly can you nullify a will? If you write a new one, does it automatically cancel out the old one? Is there a legal procedure you need to be aware of?

Why would I need to void my will?

Sometimes, life changes in small ways. Other times, it changes in ways that alter your life forever. For example, maybe one of your kids gets married, adding a new loved one (and a new place setting!) to every family gathering. Or perhaps your child adds a new family member in a different way, giving birth to a precious grandbaby. Sadly, you might lose family members through divorce or even death. When your life changes in such a major way, you might need to take a good, hard look at your will and perhaps void it altogether. According to Keystone Law, some of the most common reasons for revoking a will include:

1. The birth or death of a beneficiary
2. A marriage or divorce
3. A move to another state or country
4. Gaining new property or assets
5. Coming into a large amount of money
6. Getting into substantial debt since you wrote the will
7. You need to make so many amendments that it would be easier to just write a new will.

What happens if I don’t take the proper steps to nullify my old will?

Sure, you can simply throw an existing copy of your old will into the fireplace, light a match, and call it a day. However, according to Nolo, this might not be enough to nullify an old will. They recommend making an entirely new will to replace the old one. Afterwards, tear up the old will and any copies of it that may exist. Although most courts are generally reluctant to accept copies, Nolo points out that in a 2010 Texas case, the court system accepted a copy of a will. While unprecedented, that case is a sobering reminder of the potential consequences that might befall loved ones if you don’t take the time to void the old will. Sometimes, merely writing a new will isn’t enough. To cover all your bases and leave absolutely no room for doubt, state in your new will that you’re revoking the old one. That way, you leave nothing to fate…or the probate court!

How can I make my will null and void?

Keystone Law states that there are three ways to properly revoke a will: implied revocation, destroying the old will, and by operation of law. They also recommend consulting with an probate attorney to figure out which method you should use to make your will null and void! With that being said, let’s go over the three methods in a little more detail!

1. Implied revocation.

Cornell Law School defines implied revocation as occurring “when a testator, who already has a will, executes a new will which is inconsistent with the first and fails to include a provision expressly revoking the first will.” In other words, the inconsistencies between the two wills revoke the first will. But there’s a catch here! As Cornell Law School notes, an implied revocation doesn’t necessarily undo the entire first will. Depending on the circumstances and the intentions of the testator, it may only nullify the provisions inconsistent in the first will that are inconsistent with the second. So, keep that in mind if you decide to go the implied revocation route!

2. Destruction.

As I discussed a few paragraphs ago, another (and often recommended) option is to destroy the first will. Completely. You can choose any method of destruction you wish, from shredding to tearing it into tiny pieces to holding a ceremonial bonfire. And don’t just destroy the original will. Make sure you also get rid of the copies, too! Don’t just throw it in the garbage and call it a day. Destroy the will and its copies in such a way that leaves no room for doubt that you’re obliterating it and starting fresh.

3. Revocation by operation of law.

This step depends on your state’s laws. Per Keystone Law, revocation by operation of law isn’t something that you do. As the name suggests, this type of revocation happens automatically—by law—when events like marriage, divorce, or annulment take place. However, this isn’t the case for every single state, so don’t automatically assume your state will have your back and revoke your will if you get divorced or remarried. Sit down with a lawyer or probate attorney and ask them about your state’s laws. Even if you live in a state where revocation by operation of law exists, don’t just rely on that alone. For example, if you assume that the court will revoke your will based on your circumstances alone, a former spouse could contest it. Then your loved ones might be dragged into a long string of court hearings and a massive legal headache. So if you want to save your beneficiaries from a contentious nightmare, you might want to refer to step two!

Can a will be voided after death?

Sadly, according to Legal Match, the testator is the only one who can cancel or void a will. In other words, once the original author of the will has passed away, their beneficiaries can’t change the will. But what about cases where someone might’ve been forced to change their will? Or when their will was faked? The good news is that the court system can declare a will null and void in certain circumstances, including:

1. Duress/undue influence: We’ve seen it happen in movies: an unscrupulous and greedy relative forces a dying loved one to change their will. Sometimes, it happens in real life, too! In cases like this, the court often nullifies the will.
2. Lack of testamentary capacity: A. Traub and Associates defines testamentary capacity as “the mental capability of a person to write, or change, a will.” In other words, if the court determines that someone wasn’t of sound mind when they wrote a will, their beneficiaries can contest it.
3. Fraud: It’s hard to imagine that someone would fake another person’s will, but sadly, it does happen. And when it does, the court system will be there to step in and nullify the will.
4. Age: I don’t know about you, but I don’t like to think of a minor writing a will. A person under the age of eighteen, with their whole life ahead of them, doesn’t quite strike me as a likely testator. The American legal system is in agreement. If a testator isn’t at least eighteen, the court would deem their will invalid due to their young age.
5. After-dated will: Let’s say there are two wills, one new and one old. If the most recent will doesn’t mention revoking the old one, then the court system will defer to the latter. That’s why I keep stressing the importance of destroying your old will and any copies that might be lying around your house!

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