There are two ways to revoke a will under California law. Pursuant to California Probate Code §6120, a will can be revoked by:
- A subsequent will which revokes the prior will or part expressly or by inconsistency.
- Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.
Revoking a Will In California By Subsequent Will
A will can be revoked under California law by the creation of a subsequent will. Revocation of a prior will by creating a new will is the easiest and clearest way to revoke a will. Indeed, most wills have language at the beginning of the will indicating that prior wills are hereby revoked.
The subsequent will must be valid in order to effectively revoke the prior will. This means all the formalities required for a valid will under California law must be complied with.
In Estate of Sola (1990) 225 Cal. App. 3d 241, the appeals court determined that a will was not revoked by an invalid, subsequent, purported holographic will. The prior formal, witnessed will remained unrevoked.
Revoking a California Will By Destruction
In order to revoke a California will by destruction (i.e., burning, tearing, obliterating), the act of destruction must be coupled with the intent to revoke the will.
Therefore, if a will is accidentally destroyed, or if the destruction is caused by undue influence, mistake, or fraud, the will is not revoked. If a testator is incompetent, they cannot form the intent to revoke a will.
If a will is executed in duplicate, then the will or any part thereof is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it. See California Probate Code § 6121.
Revocation of Provisions of Will Upon Dissolution or Termination
Certain provisions in a will in favor of a former spouse or domestic partner are automatically revoked upon dissolution of the marriage or domestic partnership in California, which we have written about here.
Presumption of Revocation of A Will In California By Destruction
A will is presumed to have been revoked by destruction pursuant to California Probate Code §6124 if:
- The will was last seen in the testator’s possession,
- the testator was competent until death, and
- neither the will nor a duplicate original of the will can be found after the testator’s death.
A photocopy of a will does not qualify as a “duplicate original” for revocation purposes in California. As stated in Lauermann v. Superior Court (2005) 127 Cal. App. 4th 1327:
“Original,” in the context before us, is defined as “a primary manuscript from which copies are made.” (Webster’s 3d New Internat. Dict. (1993) p. 1591.) A duplicate, of course, is simply a copy, so that “duplicate original” may seem to be an oxymoron. However, it need not be so. Section 6121, for example, clearly contemplates that there may be more than one “original” will when it provides that “A will executed in duplicate … is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent … of revoking it … .” (Italics added.) It is also clear that “[t]here is no reason why a testator may not execute two valid wills with identical provisions to insure the execution of his wishes should one of them be accidentally lost or destroyed.”
What Is The Purpose of the Presumption of Revocation Under California Law?
The presumption of revocation when an original or duplicate original of a will cannot be found exists under California law to avoid fraud.
[I]f a testator has personally executed duplicate originals, there is little likelihood of fraud when one copy is available for probate even if the second cannot be found. Although it is true that the intentional destruction by the testator of any copy of a “will executed in duplicate” operates as a revocation … a testator who has left an executed copy of his will with, for example, his attorney (or in a safe deposit box) may be less careful to preserve the copy in his personal possession. In addition, it is likely that a testator who has executed two or more “duplicate originals” would make an effort to destroy all such copies if he or she wishes to revoke the will.
Lauermann v. Superior Court.