Creating a will is essential to ensure your final wishes are respected after you pass away. However, life is full of changes, and circumstances may arise that require you to revoke or modify your will. So, what voids a will in North Carolina? Specific legal requirements regulate the process of revoking a will. This blog will explore the various methods of revoking a will in North Carolina and shed light on the complexities surrounding this topic.
You Must Have a Sound Mind to Revoke a Prior Will
A person who has testamentary capacity has the legal ability to create a will. In North Carolina, if you can create a will, you can revoke your will at any time before your death.
The same testamentary capacity required to make a will is also required to revoke one. If you write a current will while suffering from documented dementia, an existing will made 10 years ago may remain valid.
Surviving family members would have a case for declaring your first will’s validity over the subsequent will made during your dementia. However, following state laws to provide proper documentation when revoking a will can avoid problems. Seeing your doctor for a basic competency test and talking with your estate planning attorney can help you make the best decisions if your competency is in question.
It is essential to note that a will can only be revoked or declared null and void by one of the legally binding methods prescribed by statute. Without carefully handling a will revocation, costly litigation may ensue as your family sees your new estate plan.
Next, let’s take a look at the ways you can revoke a will in North Carolina
1- Revoke Previous Wills with a Written Instrument
One method of revoking a valid will is through a written instrument.
Written Express Revocation
There are two ways this can occur. The first is through express revocation, where the explicit terms of a subsequent written instrument wholly or partially revoke a will.
You must execute this subsequent instrument with the same formalities required for creating a will. It is important to remember that a nuncupative will, which is an oral will, cannot revoke a prior written will.
However, a written revocation can effectively revoke a nuncupative will.
Written Implied Revocation
The second way to revoke a will is through a written instrument called “implied revocation.”
Implied revocation occurs when you revoke an old will based on the implications of the terms of a subsequent instrument. If there is no explicit language of revocation, the subsequent instrument (a will or a codicil) is read together with the prior instrument.
The last will is deemed revoked only to the extent that the two instruments are inconsistent.
It is important to understand that simply stating that a subsequent instrument is “my last will” does not automatically imply revocation. Family members may disagree that an implied revocation is valid.
2- Revoke Previous Wills by Physical Act
Revoking a will by a physical act is another method prescribed by North Carolina law. This involves intentionally destroying or altering the will. If you have clear intent and purpose to revoke your will, you can take the following physical actions to revoke your will:
- Burning
- Tearing
- Canceling
- Obliterating
- Destroying
You can perform the act of revocation or ask another person to act in your presence and at your direction.
However, North Carolina courts have been cautious in recognizing revocation by physical act, requiring proof of intent and a significant alteration in the will’s meaning.
3- Revocation by Operation of Law
Revocation by operation of law is another way a will can be revoked. There are several scenarios in which this can occur.
Divorce Does Not Automatically Revoke a Valid Will
First, a marriage does not automatically revoke a will. If a will was made before a marriage, the surviving spouse may petition for an elective share, similar to cases where the will was made after the marriage.
It is important to note that before 1967, a subsequent marriage did revoke a testator’s will in North Carolina. However, a change in the law in 1967 means that a subsequent marriage no longer has this effect if the will was made before the marriage.
Second, the dissolution of a marriage by absolute divorce or annulment does not revoke the will.
However, the divorce automatically revokes any provisions in the will that favor the divorced spouse unless the will specifically states otherwise. If the will is solely revoked due to divorce, the testator’s subsequent remarriage to the former spouse revives the will.
A separation agreement can also operate as a valid renunciation by the surviving spouse if the testator dies after entering into the agreement but before the divorce is finalized. The surviving spouse effectively waives their rights under the testator’s will through the separation agreement.
Birth or Adoption of a Child Does Not Revoke a Will
When it comes to children, a will is not automatically revoked by the birth or adoption of a child or the entitlement of an after-born illegitimate child to inherit under specific circumstances. Such children are entitled to a share of the testator’s estate as if the testator died intestate unless the will provides otherwise.
However, if the will makes provisions for the child, expresses the testator’s intent not to provide for the child, excludes provision for existing children, leaves the entire estate to the surviving spouse, or includes provisions for the child that take effect at death, the will remains valid.
Understanding that the subsequent conveyance of real or personal property does not revoke a will is important. This means that transferring property to someone else during your lifetime does not nullify the provisions in your will.
4- Reviving a Prior Will Into a New Will
If a will has been effectively revoked, it cannot be revived unless it falls into one of two categories.
Re-Execution of a Prior Will
First, a will that has been revoked may be revived by re-executing it according to the legal requirements for creating a will. Second, a subsequent will or codicil can revive part or all of a revoked will by incorporating it by reference.
Reviving a Lost Will
In the unfortunate event that a will is lost, North Carolina does not have specific statutory provisions regarding the probate of a lost will. The general presumption is that a lost will has been revoked. However, this presumption can be challenged and rebutted by clear evidence demonstrating that the will was lost or destroyed without the testator’s intent to revoke it.
Dependent Relative Revocation (DRR)
Lastly, we come to the concept of Dependent Relative Revocation (DRR). Although no court in North Carolina has invoked DRR, it is worth mentioning. DRR allows for the cancellation of a revocation if it was made due to a mistaken belief about the validity of an alternative disposition of the testator’s property.
This means that if a revocation was based on a mistake of law or fact and would not have been made if the testator had known the true circumstances, the revocation can be canceled.
Bottom Line: Will Revocation in North Carolina
In conclusion, revoking a will in North Carolina involves following specific legal requirements. Whether through a written instrument, physical act, or operation of law, understanding these methods is crucial if you wish to change your testamentary plans.
Our Experienced Estate Planning Attorneys Can Help
Our experienced estate planning attorneys at Hopler, Wilms, and Hanna can provide the guidance and support you need when navigating the intricacies of will revocation in North Carolina.
With our extensive knowledge of state laws and the legal requirements involved, we can assist you in understanding your options and ensuring your wishes are properly executed. Whether you need to revoke or modify your will, our team is dedicated to helping you protect your legacy and provide peace of mind for your loved ones.
Contact our firm today to schedule a consultation and take the necessary steps to safeguard your estate.