How Not to Revoke A Will – An Example of How the Will Statutes Can Be a Trap for the Unwary
Revocation of a Will
You live in Maryland. You had a lawyer prepare and you signed your Will in 2016 leaving your estate to only 2 of your 3 children. You know you have the original somewhere but you haven’t been able to find it. You are divorced with 3 adult children. You know that if you die without a Will your estate will be divided equally among your 3 children and because you have reconciled with your 3d child, that’s what you want. Seeing no need to do a new Will, all you have to do is revoke the 2016 Will. You prepare a written document revoking the 2016 Will. You sign it in front of 2 witnesses and even have it notarized.
If you were a lawyer, you would have just malpracticed.
The Estates & Trusts Article of the Maryland Code Section 4-105 provides:
(a) Except as provided in subsection (b) of this section, a will, or any part of it, may not be revoked in any manner.
(b) A will may be revoked under the following circumstances:
(1) By provision in a subsequent, validly executed will that:
(i) Revokes any prior will or part of it either expressly or by necessary implication; or
(ii) Expressly republishes an earlier will that had been revoked by an intermediate will but is still in existence;
(2) By burning, cancelling, tearing, or obliterating the will, by the testator, or by some other person in the testator’s presence and by the testator’s express direction and consent;
(3) By subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by the testator provided the child or the child’s descendant survives the testator; and all wills executed before the marriage shall be revoked; or
(4) By an absolute divorce of a testator and the testator’s spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator’s will; and all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.
An unreported case from the Maryland Court of Special Appeals filed on 8/24/2020 makes clear that the formal revocation document isn’t sufficient to revoke your Will because the original Will has not been burned, cancelled, torn or obliterated. This is part of the Court’s reasoning.
“Burning, tearing, and obliterating all require a physical act of destruction performed on the will. None of those methods may be performed by a separate writing. In this context, ‘cancelling’ reasonably is construed consistent with the primary definition of ‘cancel’ to mean a defacement or physical striking out of the terms of a will.
This is the link for the full opinion Kiknadze v. Elis https://www.courts.state.md.us/sites/default/files/unreported-opinions/1166s18.pdf