When life circumstances change, you may alter the decisions you have made in your estate planning documents. You might choose to revoke your will at some point. But what if you have a change of heart and want to reinstate it? There are different ways to revive a revoked will.
Reviving Your Old Will
Depending on your state law, you may have a few options when attempting to make a previously revoked will legally valid again. It involves either revoking the new will that revoked the old one, expressing your intent to revive the old will, or re-executing the original revoked will.
Revoking a New Will to Reinstate the Old Will
Under common law, if a subsequent will revoked the original will, effectively revoking the second will could revive the original one. The most recent will is typically considered to replace any previously created wills until the most recent will becomes effective at death. Until then, the first will is not really revoked but superseded by the later will. So tearing up or destroying the second will and any copies of it means the first one can spring back to life and control at death. However, most states do not follow this rule, so reviving the old will likely will not be this easy.
Expressly Stating Your Intent to Revive the Old Will
Some jurisdictions allow the revival of a revoked will if it is evident from the circumstances of the revocation that you intended to revive the first will.[1] Will revocation and revival can be simplified by focusing on expressly stating your intent in the appropriate format and by following the necessary formalities for execution.
Your intent to revive a revoked will could potentially be found within the new will that revokes any previous wills and restates and incorporates the terms of the will you seek to reinstate. If indications or language within the revoking document suggest an intent to reinstate the original will, the court might consider this as evidence of revival. Alternatively, the mere destruction of the most recent will may serve as evidence of your intent. If this was your initial goal, and you had an estate planning attorney conduct a careful analysis of the language used and the context in which the revoking document was created, you may be able to reinstate the first will.
Re-execution of the Revoked Will
Another avenue for reviving a revoked will involves recreating the revoked will. You must sign a copy of a new or identical will or execute a codicil to the first will that expressly states your intention to revive the original will, effectively republishing it. This typically involves following the same legal formalities required for creating your first valid will, such as signing in the presence of witnesses and a notary and meeting other legal requirements based on local laws. The act of re-executing the revoked will through the use of a codicil should be accompanied by an express statement to indicate your intent to revive or reinstate the terms of the will that was revoked.
Different states interpret and apply these methods differently, leading to variations in legal outcomes based on regional statutes and precedents. It is important to consult with an estate planning attorney to correctly revive a revoked will and ensure that your wishes are accurately represented and upheld.
Seeking Estate Planning Advice
If you have created a will, revoked it, and would like to revive it, understand that you may not be able to tear up the new one and immediately revert back to the old version. Do not attempt to recreate or reinstate the will yourself. The interpretation of will revival and revocation laws can vary widely based on jurisdiction and legal precedent.
Wills are legal documents that must be validated in probate court after you pass. If you have multiple drafts of your will, your intent is unclear, or they were not developed in compliance with state laws, the court may follow the state laws of intestacy instead of your wishes. Your beneficiaries may not receive their inheritance as you intended, adding disappointment to their grief.
We can help you document your wishes accurately, address changes legally, and ensure that your will clearly states your true intentions. We can also play a crucial role in helping create your will and other estate planning documents that guide your family through a quick and efficient probate process when you are gone.
[1] Unif. Prob. Code § 2-509(a)(2019).