The importance of a last will and testament cannot be understated. This document allows you to control what happens to your possessions and wealth when you pass. You get to decide who benefits from your estate and who should not receive anything. If you die without a will, state laws determine how your assets are divided, which probably does not match your preferences.
While making a will is an important step to take, your family and your wishes for the future might change over time. If you made your first will when you were 30 years old and only had one child, you are likely in a different situation and have new considerations when you’re 60 and have grandchildren.
Because life evolves, you need to understand how to revoke a will in order to write an entirely new one or how to make changes to your current will through codicils.
Revoking Your Written Will
There are specific laws surrounding how you can revoke your will and what actions do not count as a revocation. How you can cancel a will also depends on the type of will you have – written or nuncupative.
Under North Carolina General Statutes, Chapter 31, Article 2, you can only revoke a written will by:
- Writing a subsequent will, codicil, or other writing executed in the manner of a written will; or
- By burning, tearing, canceling, or destroying the document with the intention of revoking the will. You must perform these actions yourself or have someone do it by your direction and in your presence.
Many lawsuits are founded on questioning whether a will was truly revoked. Sometimes a person will tear a document in half and stick it back in their safe. Does that mean the will is revoked? Or was it ripped in half for another reason? If you want to revoke a will with a physical action, make it definite and obvious what your intention is. Even better, have a witness, like your attorney.
Also, be careful about revoking a will without having a new will prepared. If you merely revoke your will, then your future of your estate rests in the state’s hands, not your own.
Additionally, even when someone writes a second or third will there can be a question of whether a previous will was revoked. If you intend to write a new will, make a clear statement in the new document that all previous wills and codicils are revoked.
Do not leave anyone room to argue about your intentions when you are gone. When it comes to revoking a will, you want to be as unambiguous about your desires as possible.
Revoking Your Nuncupative Will
If you made an oral will during your ill health or when you were in imminent peril of death but now you have changed your mind, there is a way to revoke your previous statement.
Under North Carolina law, you can revoke a nuncupative will by:
- Making a subsequence nuncupative will; or
- Making a subsequent written will, codicil, or other writing executed in the manner of a written will.
Remember that if you want to make a new oral or written will, you will need two competent witnesses. It is also better if the witnesses are disinterested, meaning they do not receive anything from the will.
Changing Your Will
You have the right to amend or alter your will at any time. You can change or revoke certain provisions and you can add new clauses. You have full control over the document as long as you remain of sound mind, which means a court has not deemed you incompetent. However, you do not have full control over how you can change your will.
You can change your will be writing a new one and revoking the old or through a codicil. You cannot merely cross out lines or write “No” or “Void” next to a provision.
A codicil is an addition or amendment that is created with the same formalities in which you created your will. It is a fancy term that simply means you add a new document to your will that becomes part of your last will and testament.
The formalities for making a valid will or codicil are:
- You must be of sound mind;
- Have at least two competent witnesses;
- Sign the will or codicil in your witnesses’ presence or acknowledge your signature to them later; and
- Each witness must sign the will or codicil in your presence.
The Effects of a Divorce on a Will
Getting divorced or an annulment does not revoke your will, even if it is a joint will you made with your previous partner. However, the divorce does revoke all provision in the will that were in favor of your ex-spouse, unless the will states not to do this. This means, if you had in your will that your ex-wife or ex-husband was to receive certain possessions or was to be the executor of your estate, these provisions are no longer valid.
After a divorce, you absolutely need to update your will. To do so, contact an LGBT lawyer at Winston-Salem for advice on amending the document or revoking it and starting fresh.
The Effects of Children Born or Adopted After the Will
If you have or adopt a child, whether as part of your marriage or not, after you wrote your will, this new child does not revoke your will. However, this child generally has a right to share in your estate when you pass the same as it would have benefited if you died without a will.
You can avoid any future disputes by ensuring your will is drafted to account for future children, amending your current will, or revoking your current will and writing a new one.
Contact the offices of LGBT Law of Winston-Salem
Whether you need to write your first will, revoke a will, or make some changes to the current document, it is best to work with an experienced attorney. If you are in a same-sex relationship, it is even more important to work with a Winston Salem, NC LGBT lawyer who understands the specific issues you face in regard to building and planning for your family.