There are three general ways of revoking a will in Texas: through subsequent writing, by a physical act upon the will, or by operation of law.
Revoking a Will through Subsequent Writing
Express revocation of a will by drafting a new will is by far the safest and most effective way of revoking your will. Drafting a new will that includes such words as “I revoke all prior wills and codicils” avoids problems that may arise through other methods of revocation, such as questions about one’s intention to revoke the will.
A codicil, or an amendment to a will, also effectively revokes a will. A codicil is used to change a portion of a will rather than the will in its entirety. Since a codicil must be executed with the same formalities as a will and it is relatively easy to produce a new will, I typically recommend re-drafting the will rather than doing a codicil. This avoids the complication of numerous codicils which could be lost. If a codicil is lost, it can’t be probated with the original will and, therefore, changes made through the codicil would have no effect.
Revoking a Will by Physical Act
Finally, Texas law authorizes a testator to revoke her will by a physical act upon the will. For this to be effective, the testator must have (1) the intent to revoke the will and (2) the mental capacity to revoke it at the same time as she makes the physical act upon the entire will. What sort of physical acts are effective for revoking the will? Texas law refers to “destroying” or “canceling” the will.
Texas does not authorize partial revocation of attested wills. Thus, physical acts intending to revoke part of an attested will, such as strike-outs, interlineations, etc. are ineffective.
Operation of Law
In some circumstances, the law will intervene to revoke a portion of a will. Below are some examples of revocation by operation of law:
(1) Divorce – When an individual divorces, her former spouse no longer inherits under the will and the law will treat the ex-spouse has having predeceased the testator.
(2) Pretermitted heirs – If a child is born to or adopted by an individual after a will is executed and is not provided for in the will or through a nonprobate transfer, Texas law will step in to protect the child from disinheritance. The child will receive a portion of the decedent’s estate; the amount the child receives will depend on whether the decedent had other children who were provided for under his will.
(3) Death of a Beneficiary – If a beneficiary predeceases the testator and the will does not name an alternate, Texas antilapse laws will prevent the gift from passing as if the testator had no will. For more information, see my previous blog post.
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