Estate Planning and Tax Lawyer Blog

I am often asked how you can revoke your current Will. There are several ways to revoke your Will under the Florida Statutes. Section 732.505 allows you to revoke your Will by writing in one of two ways. First you may expressly revoke the Will by signing a document, in front of two witnesses, stating you are revoking your Will. It is important that you execute that writing just like you would your Will. Second, you may create a new Will which is inconsistent with the old Will. However, the new Will will only control where the inconsistencies are, not overall. Essentially, you would be working under two different Wills. The easiest way by writing is to create a new Will and specifically state that you are revoking any and all prior Wills or codicils (changes to a Will). Section 732.509 states that revoking the original Will also revokes any codicils to that Will.

Section 732.506 allows you to revoke your Will by actions. The statute reads “A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.” So this means that if you tear the Will in half, burn the Will in your fireplace or write all over the Will that the Will is revoked. However, please be weary that there is case law out there that states that if you tear or write on the Will, but the words of the Will are not impacted at all and only the margins are modified, then the Will is still in full force and effect. So if you wish to write on your Will to revoke it….act like a child and write all over the words of it!

So, the moral of the story is that if you really want to revoke your Will, ask an attorney how to properly handle the revocation. Most attorneys will offer to shred the Will for you, thereby completely destroying the Will.

As simple as this may sound, it is very important to revoke your old estate planning documents properly. Several years ago, I was involved in a probate, along with about 23 other attorneys, because someone passed away with 3, yes 3, different estate plans from 3 different attorneys. The problem is that none of the plans were revoked. About 5 years and $4M later, the probate was settled but it cost the estate dearly because a lot of property was sold in order to pay for all the legal fees.