A document may be a valid Will when made (ie, upon its execution and attestation) but no longer remain available and valid at the Testator’s death, as a result of its in the interim having been lost, inadvertently destroyed, or revoked:
Revocation may be partial — going to one or more provisions of a Will — or total — revoking the entire Will. Furthermore, revocation may be made by the Testator or by operation of law.
Note that express revocation of a Will may be made only by a document that is also executed with the same formalities as a Will, namely, another Will or a Codicil. Estate of Peirce, 63 Wash. 437 (1911).
|Example: Will says “I give my Ford to John.” Later Codicil says “I give my Ford to Mary.”
Result: John’s gift is revoked, and Mary takes the Ford.
|As a result of a peculiarity of Washington law known as the Deadman’s Statute (RCW 5.60.030), a witness in this procedure cannot be anyone who could gain or lose from the outcome of the case. Estate of Shaughnessy, 97 Wn.2d 652 (1982); Estate of Tate, 32 Wn.2d 252 (1948). See The Deadman’s Statute.|
Must be proved by two witnesses. RCW 11.12.040(1)(b)
Problem: Consistent with RCW 11.12.040(1)(b), a Testator may revoke one or more provisions in his/her Will by crossing, lining, or marking them out. Such partial revocation, however, has not faired well in the Courts, which have established the requirement that a partial revocation made by marking out text in a Will is valid under RCW 11.12.040 but only if it results in an incidental increase in property passing to other Beneficiaries (a “revocation”) but not if it is intended to and does result in either a substantial enhancement of an existing gift or a new gift under the Will (an “alteration”), which would necessarily require the change to be made with the same formalities as making a Will. Estate of Malloy, 134 Wn.2d 316 (1998).
Rather than attempt to differentiate a “revocation” from an “alteration,” 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 the Testator’s marking 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: “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 earrings, might pass muster, while anything of significantly greater value will not.
And the Will fails to name or provide for the new spouse or child (as the Will is likely to do, since it was made before the marriage, birth, or adoption), then despite the Will, the omitted spouse (RCW 11.12.095) or child (RCW 11.12.091) takes his/her intestate share as a matter of law unless it appears by clear and convincing evidence that the failure was intentional.
Bar examiners love to ask questions about “the mad Testator” who seemingly has nothing better to do than make and revoke Wills from one day to the next, giving rise to the doctrines of “revival of a Will” and “dependent relative revocation,” both of which are traps for the unwary.
Revival of a Will addresses the following circumstance:
Query: What is the effect, if any, of the revocation of Will #2 on Will #1?
Result: Having revoked Will #2 (which revoked Will #1), the Testator has no Will. But:
Result: The previously revoked provisions of Will #1 are now “revived” as part of the Testator’s valid Will. RCW 11.12.080
|Revival brings back a prior revoked gift or Will (there must be a prior valid revocation for revival to revive it).
Conditional Revocation invalidates a present valid revocation (there must be a present valid revocation in order for it to be invalidated by conditional revocation (95 CJS 426 (2001)).
Unfortunately, conditional revocation has come to be know as “Dependent Relative Revocation,” although the former phrase describes the doctrine and the latter phrase obfuscates it, so much so as to repeatedly detour the Courts (see Section D below). Conditional revocation addresses the following circumstance:
Query: What is the effect of the Testator’s valid revocation, made in effect on the condition that:
Conditional revocation is the result of real life putting the Courts between:
These cases present no doubt about what the Testator wanted — and yet, he/she died innocently about the circumstances and before the formalities were undertaken to realize the intent according to law. Consequently, the Courts:
Conditional revocation is remarkably illustrated in Estate of Kerckhof, 13 Wn.2d 469, (1942), where:
The facts in Kerckhof fell squarely within the requirements for conditional revocation: A valid revocation made on the basis of a mistaken belief (ie, that the Testator’s only heir was his brother Louis) that went uncorrected to death. Unfortunately, the Supreme Court found the doctrine of conditional revocation inapplicable and upheld the trial Court’s refusal to probate the destroyed Will.
|Conditional Revocation requires a valid revocation — one can’t invalidate an ineffective act … it is already invalid.
Unfortunately, Ineffective Revocation is often confused with the circumstances calling forth conditional revocation. See, for example, the following cases, where the Courts fortunately reached the result consistent with law (ie, the original gift remained in force) but for the wrong reason:
These cases are not conditional revocation cases (as found by the Courts) but, instead, ineffective revocation cases.
The following, third situation, although confusingly similar, falls into neither the revival nor the conditional revocation category:
Query A: What is the effect of the unsuccessful making of Will #2 & its ineffective revocation of Will #1?
Query B: What is the effect of the unsuccessful marking out of the gift in Will #1 & its ineffective revocation of that gift?