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Washington Wills > Changing a Will
The Situation:
You have executed a Will,
Time has passed --- circumstances have changed, and
You want to change your Will's provisions.
Possible Solutions:
Revising your existing Will.
Executing a Codicil.
Executing a new Will.
A. Revising An Existing Will. ñ
In a word: "No!" The law is unclear, and you would be taking your chances. On the one hand, RCW 11.12.040 provides "A will, or any part thereof, can be revoked: ... (b) By being ... canceled, [or] obliterated, ... with the intent and for the purpose of revoking the same, ....", so one would think that a Testator could revoke a gift in his/her Will simply by physically crossing, lining, or marking it out. On the other hand, Washington case law on this issue is confused and not in favor of Testators. In short, if you want to change your Will's provisions, use an alternative to revising your existing Will.
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Crossing Out a Will Provision: The most recent
case on the effect of a Testator's crossing out a Will provision is Estate
of Malloy, 134 Wash. 2d 316 (1998), which stands for the proposition
that a change to a Will may be made under RCW 11.12.040 only if it
operates as a "revocation" and not as an "alteration or modification" of the Will. Rather than attempt to differentiate a "revocation" from an
"alteration or modification," suffice it to say that the only
Washington case found
where the Court validated the Testator's crossing out a Will provision is
Estate of Appleton, 163 Wash. 632 (1931). There, the Testator's Will read as follows (with her crossings out shown
in blue italics): "I desire that my niece, Lucile Hicks, have my [list of
jewelry]. I give my niece, Mable Hicks, my
[ear-rings]." In Appleton, the Court held that the
crossing out of the gift of the ear-rings was "a true revocation, because
canceling of that bequest did not so 'vitally enhance' the residuary
bequests as to impair those bequests or any portion of the Will."
At page 644. Contrast Appleton, however, to Estate of
Eastman, 61 Wn. App. 907 (1991), where the Testator's Will read as follows
(with his crossings out shown in blue italics): "to my sons, Michael
+ Edward, in equal shares, share and share alike."
In Eastman, the Court invalidated the Testator's attempted
disinheritance of Edward and restored the Will so that that two sons took
equally. One way of interpreting this line of cases is that crossing
out a bequest of an item of modest value, such as ear-rings, might pass
muster, while anything of greater value will not. Bottom-line: Don't cross-out, line-out, or mark-out any Will provision. If you want to change a gift in your current Will, execute a new Will. |
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A 1912 South Carolina Case: Brown v. Brown,
91 S.C. 101, 74 S.E. 135 (1912). There, the Testator's Will read as
follows (with his crossings out shown in blue
italics): "I will to my nephew, Fred Haltiwanger, one thousand dollars; to my
nephew, Fred Brown Ledbetter, one thousand dollars;
to my nieces, namesakes of my mother, Julia Ledbetter, Julia Haltiwanger,
and Julia Brown one thousand dollars each; to Ezekial Martin, my
colored servant, two hundred dollars, and it is my desire that he use this
to pay for his home. ... I will and devise five
hundred dollars to Mrs. Zoe La Foy and John La Foy to assist them in
purchasing a home." In Brown, the South
Carolina Supreme Court held that "The increase of the residuary estate which
may result from the obliteration is not a new testamentary disposition, but
a mere incidental consequence resulting from the [Testator's] exercise of
[South Carolina's version of RCW 11.12.040]" and validated the Testator's
crossings out. WASHINGTON PROBATE urges you not to rely on an almost 100-year old South Carolina case --- Don't attempt to change your Will by crossing, lining, or marking out a provision. |
A Codicil is "a Will that modifies or partially revokes an existing or earlier Will. A Codicil need not refer to or be attached to the earlier Will." RCW 11.02.005(9) Being a Will itself, a Codicil must be executed with the same formalities as Wills. Also, by using a Codicil, a Testator necessarily:
Relies on two separate documents, both of which will need to be found and filed with the Court on death and interpreted as one, and
Keeps the Will containing the revoked provision, which will become public upon its eventual filing with the Court.
Given that executing a Codicil is no simpler than executing a Will, in the interests of efficiency, simplicity, and privacy, most Testators prefer to execute a new Will in order to change the provisions of a prior Will unless the change represents something that is not private or already public, such as a change:
Among the members of one's family, or
A named fiduciary who is no longer able to serve.
For the reasons stated above, the safest way to change a provision of your current Will, and especially a gift in it, is to execute a new Will that contains the changed provision.
D. Revoking an Existing Will. ñ