For destruction of a will to effect its revocation, there must be a union of intent and act. Intent alone and destruction alone are insufficient. See Prob C §6120(b).
Under Prob C §6120(b), a will can be revoked by being
burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.
When a will is executed in duplicate, it’s revoked if the testator (or another person in the testator’s presence and by the testator’s direction) destroys one of the duplicates with the requisite intent. Prob C §6121.
A will isn’t revoked by destruction when:
- The destruction is accidental or caused by undue influence, mistake, or fraud; or
- The testator is incompetent and thus not legally able to form an intent to revoke.
There’s a presumption of revocation by destruction, even when intent can’t be shown. Thus a lost will may be presumed destroyed by the testator with intent to revoke the will under Prob C §6124.
Under Prob C §6124, the testator will be presumed to have destroyed the will with the intent to revoke it if the following requirements are met:
- The will was last in the testator’s possession;
- The testator was competent until death; and
- Neither the will nor a duplicate original of the will can be found after the testator’s death.
The presumption of revocation by destruction is a presumption affecting the burden of producing evidence. A will contestant has the ultimate burden of proving that a lost or destroyed will was destroyed by the testator with the intent to revoke.
A photocopy of a will isn’t a “duplicate original” for purposes of the presumption of revocation and therefore can’t be probated if the will can’t be found after death. Lauermann v Superior Court (2005) 127 CA4th 1327.
The easiest and most effective way to avoid the operation of this presumption of revocation by destruction is to take proper precautions to prevent loss of the will.
The executed will should be kept in a place in which
- The risk of loss or destruction of the will is reduced to a minimum;
- The will is accessible to the testator and to the executor at the testator’s death; and
- The will isn’t accessible to persons adversely affected by it.
The most common places that meet these requirements are the client’s safe-deposit box, the attorney’s safe-deposit box, and the vault of a corporate executor (e.g., a bank or trust company).
If the attorney keeps the original will, the testator is more likely to return to him or her for subsequent estate planning and to retain the attorney to handle the probate at the testator’s death. But retaining custody of an original will has disadvantages for the attorney:
- As a custodian of the will, the attorney must, within 30 days after having knowledge of the death of the testator, deliver the original to the county clerk of the county in which the estate of the decedent may be administered, personally or by registered or certified mail, and pay the $50 fee, hoping to be reimbursed from the estate eventually. Govt C §70626(d); Prob C §8200(a), (d).
- The attorney must follow the rules in Prob C §§700–735 for deposits of estate planning documents with an attorney.
- The client may execute a new will under the supervision of another attorney several years later and not bother to inform the attorney holding the original will that it has been superseded. The attorney will be unaware that the will no longer is valid and will continue to safeguard it. If the attorney later suspects that the will has been superseded, he or she may make efforts to contact the client, which may prove fruitless if the client has moved or died.
- Some attorneys don’t keep original wills, because they believe that this might increase their exposure to claims that they have a duty to inform their former clients of changes in the law affecting their wills.
Whenever the attorney keeps the original will, the first page of the client’s conformed copy should specify where the original is being held. If the client keeps the original will, it’s a good idea to have the client sign a receipt for it. This will protect the attorney against a claim that he or she lost the original will.
For discussion of all the ways in which a will may be revoked, turn to CEB’s California Will Drafting, chap 9.
- Checklist: Reviewing an Estate Plan
- Revocation-on-Divorce Statute May Have Retroactive Reach
- How to Amend a Trust
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