A testator can revoke a will under Illinois law by:
- Burning, canceling, tearing, or obliterating the will;
- Executing a new will declaring that the prior will is revoked;
- Executing a new will that is inconsistent with the prior will;
- Executing a new instrument, signed by the testator and two witnesses, declaring the will is revoked.
The methods to revoke a will under Illinois law are governed by statute in the Illinois Probate Act at 755 ILCS 5/4-7(a).
Along with any of the above acts, the testator must also have the intent to revoke their will for the will to be validly revoked under Illinois law. In re Estate of Minsky, 46 Ill. App.3d 394 (1st Dist. 1977).
Alleging that a testator’s will has been revoked is one basis to challenge the validity of a will offered for probate in Illinois.
Method 1: Revoke a Will In Illinois By Destroying It
One way to revoke a will under Illinois law is to destroy the will. Destruction of a will can be accomplished by burning, tearing, canceling, or obliterating the will. Perhaps a testator writes revoked on every page, or tears the entire will in half to revoke the will by destruction.
If destruction is the method chosen, the testator must make sure to destroy every copy of the will as well as the original will. If there are any remaining copies of the will, someone could attempt to have a copy admitted to Illinois probate.
In addition to the actual destruction of the will, it is a good idea for the testator to tell people that he has chosen to revoke the will and has destroyed to will to effectuate the revocation. A party seeking to probate a copy of a will is required to prove that the testator did not intend to revoke the original will. If the testator has shared with others that he has revoked the will, there will be witnesses who can testify as to the testator’s intent to revoke the will under Illinois law.
Method 2: Revoke a Will In Illinois By Executing a New Inconsistent Will
Revoking a will by executing a new will that is inconsistent with the previous will is the most common way a testator revokes a prior will. After all, most people create a new will because they want to distribute their assets differently than they did in their previous will.
Most of the time the will states that it operates to revoke any previous will, which is, in and of itself, another way to revoke a will under Illinois law.
Method 3: Revoke a Will In Illinois By Executing a New Will Declaring Revocation Of Prior Will
Revoking a will by executing a new will declaring the prior will to be revoked is another way to revoke your will under Illinois law. Most of the time, this method is coupled with executing a will that is inconsistent with the previous will. However, sometimes people execute a new will simply to change the nominated executor, and so the revocation language is important.
Method 4: Revoke a Will In Illinois By Executing a New Instrument Declaring Will Revoked
The fourth and final way to revoke a will under Illinois law is to execute a new instrument declaring that the will is revoked. This instrument could be a simple piece of paper declaring that the testator hereby revokes the will. The instrument must be executed by the testator and two witnesses in order to effectively revoke the will under Illinois law.
How Do You Prove Intent To Revoke a Will?
Each of the four methods of revoking a will must also be accompanied by the intent of the testator to revoke the will.
A presumption exists under Illinois law that a will that was last in the possession of the testator that cannot be found upon the testator’s death was destroyed with the intent to revoke the will.
A presumption that the testator had the intent to revoke the will also arises when the will is in the testator’s possession up until the testator’s death, and is found among the testator’s belongings with erasures, alterations, cancellations, or tearings.
When the presumption of intent to revoke the will arises under Illinois law, then the burden is on the proponent of the will to prove that the proffered will was valid at the time of the testator’s death.
Courts look at several factors to determine whether the presumption of revocation has been overcome, including:
- Evidence as to statements from the testator that he or she did not intend to revoke the will;
- Evidence that the testator had a kind and loving attitude toward the proposed beneficiary under the will up until the testator’s death; and
- Evidence of other persons’ access to the will prior to the testator’s death.
Can an Inadmissible Will Revoke an Earlier Will?
Yes, a will that is inadmissible for probate in Illinois has been held to revoke an earlier will when a copy of the earlier will was offered for probate. In In re Estate of Oleksiuk, an Illinois appellate court upheld the finding of the circuit court which dismissed a petition to admit a copy of a 2011 Will to probate. The petitioners did not rebut the presumption of revocation given that the decedent had executed a 2012 will that expressly revoked the 2011 will. The 2012 will, even though it was not legally effective, was a clear expression of intent to revoke the earlier will. The court stated:
An earlier will can be revoked by a revocation clause in a later executed will, and other instruments, or by a physical act of destruction by the testator. Thus, in the case of a missing original will, courts presume that the testator physically destroyed the original will with the intent to revoke it. As previously stated there are three factors considered to overcome this presumption. Even if we accepted as true that Irena had access to the original 2011 Will, and potentially hid or destroyed it, and petitioners could demonstrate decedent’s unchanged kind and loving attitude towards the proposed beneficiaries, petitioners’ claim would nonetheless fail. The test for admitting a will copy only requires a showing that decedent did not intend to change his will, even though it is missing. Correspondingly, if the decedent expressed any statement demonstrating an intent to change his will, the will copy cannot be admitted.
In the present petition and in the earlier proceedings, the parties and court acknowledged the existence of the 2012 Will. The fact that decedent drafted and signed the 2012 Will, which departed significantly from the dispositions provided for under the 2011 Will, shows that the 2011 Will no longer reflected decedent’s testamentary intent. Decedent clearly intended to revoke the 2011 Will and petitioners cannot assert otherwise. The fact that the 2012 Will copy was denied admission to probate and was not legally effective has no effect on the expression of decedent’s intent at the time he executed the 2012 Will and rejected the terms of the 2011 Will.
Whatever method is chosen to revoke a will, it is essential that Illinois law is strictly followed so that the revocation is effective.
