Burn Baby Burn – How to Revoke Your Will

Have you ever woken up in the night and wanted nothing more than to light a bonfire and throw your Will into the flames? It happens. Unexpected situations can arise that create an immediate desire to revise your Will. Here are some hypothetical examples:

• Jane’s Will nominates her live-in boyfriend, William, as her primary Personal Representative and her best friend, Becky, as her alternate Personal Representative. Jane left work a little earlier than usual one afternoon and arrived home to catch William and Becky “in the act.” Jane wants to immediately revoke her Will. She wants to nominate other Personal Representatives in a new Will.
• Larry’s Will provides a significant distribution to his brother, Joe. Larry recently discovered that Joe is addicted to fentanyl, was fired from his job due to the addiction, and is about to be evicted from his rental home due to lack of income. Larry wants to immediately revoke his Will. Larry wants to create a special needs trust for Joe in a new Will, as opposed to giving him the money outright, and, likely, having it be used to purchase fentanyl.
• Mary’s Will distributes most of her assets to her daughter, Francis. Francis will be turning 24 next month, has never attended college, is currently unemployed, and, to Mary’s dismay, just embarked on an extended backpacking trip through South America. Mary wants to revoke her Will immediately to ensure that, in the event of her death, Francis cannot use her estate distribution to continue her backpacking adventures. Instead, Mary wants a new Will with a testamentary trust so that Francis can only receive funds if she decides to pursue additional education.

Suppose Jane, Larry, or Mary burn their Will? Is that enough to revoke it? Yes, according to Washington law. RCW 11.12.040 states:

(1) A will, or any part thereof, can be revoked:

(a) By a subsequent will that revokes, or partially revokes, the prior will expressly or by inconsistency; or

(b) By being burnt, torn, canceled, obliterated, destroyed, or a physical act, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two witnesses.

(2) Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator’s intent.

The problem is that, once that Will turns to ash, if Jane, Larry, or Mary die before they can go to their estate planning attorney to execute a new Will that better reflects their current circumstances, they will die intestate. The laws of intestate succession will govern the distribution of their respective estates. Even though Jane, Larry, and Mary all have good reasons for wanting to revoke their Wills, there are likely other provisions in their Wills that they like and want to keep. By burning the Will, they are throwing away the baby with the bathwater.

Think twice if you wake up with a burning desire to burn that Will. It may be better to keep it in place until you can execute a new one. If you need help, please let us know. We’ll be happy to assist.