Revoking a Will

In this post, I discuss the methods for revoking a will and the legal considerations that accompany each approach under Arkansas law.

Everyone changes his or her mind from time to time, and the area of estate planning is no exception. Whether as a result of a change in your personal circumstances or in your relationship to your will’s beneficiaries, you may, after writing your will, decide that its provisions no longer fulfill your desires. Revoking a will can therefore be a desirable course of action.

Since wills are good forever—and since not having one at all can create its own problems—understanding the different ways of revoking a will is a valuable bit of knowledge. In this post, I will discuss the various methods of revoking a will, along with the doctrine of dependent relative revocation and the effect of divorce on testamentary instruments.

Revoking a Will by a Subsequent Writing

You may revoke a will by a subsequent writing. If not done properly, however, the subsequent writing may not be effective for revoking a will, so this must be done carefully.

Before determining whether a subsequent writing revokes a will, it must first be determined if the writing is a revocation or a codicil—a codicil being an amendment to the will. A codicil typically supplements or modifies specific provisions of the existing will, while a revocation generally cannot be understood except in relation to the previous will that is the subject of the revocation.

If the second writing disposes of property not disposed of by the first will, then the writing is a codicil. While it may change the provisions of the first will, it will not be effective to revoke it.

Whether a revocation or a codicil, however, to have any effect a subsequent writing must meet the same execution requirements as a will. This means all the same formalities must be followed. It is therefore much easier to revoke a will by a physical act, as discussed below.

Revocation by subsequent writing may be desirable, however, if the testator is concerned about removing all doubt that the will was in fact revoked, or where the testator desires to make a partial revocation. (A partial revocation generally occurs where the testator revokes an individual gift in the will but keeps the remainder of the will in place.)

Revoking a Will by Physical Act

A testator may revoke a will by physical act quite easily. The testator merely has to destroy the will, whether that be by tearing it up, shredding it, burning it, or whatever. It is a good idea, however, to simply create a new will revoking the old one because it removes all doubt of the first will’s validity.

Physically destroying an old will after the formation of a new will can serve you well, but destroying a will can create issues of doubt when the destruction would result in intestacy. In a pinch, however, physically destroying the will may be your best option, particularly if evidence of the destruction is readily accessible.

Lost Wills

Lost wills can serve as one method of revoking a will, albeit unintentionally. A lost will, however, is still a valid will. It can, in fact, still be probated, though the contents of the will must be demonstrated by strong, cogent, and convincing evidence. This is a pretty high standard, so as a general matter of practicality, a lost will is a revoked will.

Dependent Relative Revocation (DRR)

Dependent relative revocation, or DRR, is not a method of revoking a will. Rather, it is a way to address a situation where an attempt to revoke a will proved invalid. Dependent relative revocation is applicable where a testator revokes a will by a second will but then that second will is later deemed invalid—perhaps due to one of the grounds to contest a will.

In this situation, the revocation of the first is deemed invalid because the second will—the document that revoked the first will—was ineffective. Therefore, the first will will be considered the valid will.

It is worth noting that Arkansas courts have generally not applied DRR, given the state’s strict statutory requirements for revival of wills under Arkansas Code § 28-25-110. In jurisdictions that do recognize DRR, the doctrine serves as an important safety net against unintended intestacy.

Revival of Wills

An interesting situation can arise where the testator executes a valid second will to revoke the first will but then changes his or her mind and revokes the second will in order to revive the first will.

So for example, let’s say that John Smith wrote a will leaving everything to his two children. Later, he and his oldest child have a falling out, so John Smith executes a valid second will disinheriting the first child. Some time later, John Smith and his oldest child reconcile, so John Smith revokes his second will with the intent that his first will will once again be his valid will.

Different jurisdictions have handled this situation differently.

1. Some jurisdictions hold that there was never any revocation of the first will because nothing goes into effect until the testator dies.
2. Other jurisdictions hold that the first will is revived if the testator revokes the second will with the intent of reviving the first will.
3. Finally, still other jurisdictions, including Arkansas, hold that the first will was permanently revoked by the second will. It can therefore only be revived by its re-execution with the accompanying formalities. Revoking the second will is simply not sufficient.

Effects of Divorce

Partial revocation of a will can occur automatically in Arkansas as a result of divorce. Under Arkansas Code § 28-25-109, divorce nullifies any bequests to a former spouse, even if the will was executed prior to the marriage. The statute simply revokes all provisions in favor of the former spouse, which means that any property bequeathed to the former spouse passes according to the will’s residuary clause or, if none exists, by the laws of intestate succession.

This automatic revocation extends only to provisions benefiting the former spouse—the remainder of the will stays intact. It is important to note, however, that remarriage does not automatically revoke a prior will. If your circumstances change through marriage, the birth of children, or the acquisition of significant assets, you should consult with an estate planning attorney to ensure your will reflects your current wishes.

Video: Executing and Revoking a Will

For an accessible overview of how wills are executed and revoked, this short video from LawShelf Educational Media covers the basics:

Conclusion

Revoking a will is not as simple as it might seem. Whether you choose to execute a new document, physically destroy the old one, or rely on the automatic effects of a life event like divorce, each method carries its own legal requirements and potential complications. The safest course of action is almost always to execute a properly drafted new will that expressly revokes all prior wills and codicils. If you are considering changes to your estate plan, consulting with a qualified estate planning attorney is well worth the investment.

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This post provides general legal information about will revocation under Arkansas law and is not intended as legal advice. Laws vary by jurisdiction, and individual circumstances can significantly affect outcomes. If you need guidance on revoking or updating your will, please consult a licensed attorney in your state.

Frequently Asked Questions

How do I revoke a will in Arkansas?

In Arkansas, you can revoke a will by executing a subsequent writing that meets the same formalities as a will, by physically destroying the will with the intent to revoke it, or by operation of law (such as through divorce, which automatically nullifies bequests to a former spouse under Arkansas Code § 28-25-109).

Can you revoke a will after the testator dies?

No. A will can only be revoked by the testator during his or her lifetime. Once the testator dies, the will becomes operative and can no longer be revoked. It can, however, be contested in probate court on grounds such as lack of testamentary capacity, undue influence, or improper execution.

What is dependent relative revocation?

Dependent relative revocation (DRR) is a legal doctrine that preserves the validity of an earlier will when a later will—which purported to revoke it—is itself deemed invalid. DRR operates on the principle that the testator’s revocation of the first will was conditional on the validity of the second, so if the condition fails, the revocation also fails and the original will remains in effect. However, Arkansas courts have generally not applied DRR due to the state’s strict statutory revival requirements under Arkansas Code § 28-25-110.

Does getting divorced automatically revoke my will?

In Arkansas, divorce does not revoke your entire will, but it does automatically nullify any provisions that benefit your former spouse. All provisions benefiting your ex-spouse are simply revoked by operation of law. The rest of the will remains valid. However, it is strongly advisable to execute a new will after a divorce to ensure your estate plan reflects your current wishes.

What is the difference between revoking a will and amending it with a codicil?

A revocation eliminates the will entirely (or a specific provision), while a codicil amends or supplements an existing will without replacing it. A codicil must meet the same execution requirements as a will—it must be signed by the testator and witnessed according to the jurisdiction’s formalities. If a writing disposes of property not addressed in the original will, it is typically treated as a codicil rather than a revocation.