A testator can revoke a will under Ohio law by:
- Destroying the will;
- Making a new will revoking the old one;
- Executing “some other writing” that is signed, attested, and subscribed in the manner provided by Ohio law.
Revoking A Will In Ohio By Destroying The Will
Ohio Revised Code section 2107.33 covers the revocation of a will under Ohio law. Under section 2107.33, an Ohio will can be revoked by:
- The testator tearing, canceling, obliterating, or destroying the will with the intention of revoking it;
- Some person, at the request of the testator and in the testator’s presence, tearing, canceling, obliterating, or destroying the will with the intention of revoking it;
- Some person tearing, cancelling, obliterating, or destroying it pursuant to the testator’s express written direction.
Revoking a will by physical destruction requires intent. Therefore, if there is a dispute after death regarding whether or not the testator intended to destroy the will, evidence of the intent to destroy is required. In a contested or litigated estate, the intent to destroy can become a key part of the dispute.
Revoking A Will By Making A New Will
Ohio Revised Code section 2107.33 also provides that a will can be revoked:
- By some other written will or codicil, executed as provided by Ohio Law;
- By some other writing that is signed, attested, and subscribed in the manner provided by Ohio law.
Executing a new will prepared by an Ohio probate lawyer is the best way to revoke a prior will. Generally, wills contain language indicating an intent to revoke all prior wills. Therefore, a subsequent will executed as required by Ohio law is the cleanest and clearest way to revoke a prior will. The testator’s intent is demonstrated by the later will, and does not have to be proven as it does with a will revoked through destruction.
Divorce Can Partially Revoke A Will Under Ohio Law
A will can be partially revoked in Ohio as the result of a divorce, annulment, or entry into a separation agreement. Pursuant to Ohio Revised Code 2107.33(B):
If after executing a will, a testator is divorced, obtains a dissolution of marriage, has the testator’s marriage annulled, or, upon actual separation from the testator’s spouse, enters into a separation agreement pursuant to which the parties intend to fully and finally settle their prospective property rights in the property of the other, whether by expected inheritance or otherwise, any disposition or appointment of property made by the will to the former spouse or to a trust with powers created by or available to the former spouse, any provision in the will conferring a general or special power of appointment on the former spouse, and any nomination in the will of the former spouse as executor, trustee, or guardian shall be revoked unless the will expressly provides otherwise.
A Testator Must Have Capacity To Revoke A Will Under Ohio Law
In order to make a valid will in Ohio, a testator must have capacity to do so, which we have written about here. In order to revoke a will, the revocation is valid only if the testator, at the time of the revocation, has the same capacity as the law requires for the execution of a will.
Does Marriage Invalidate A Will In Ohio?
No. Under Ohio law, a will executed by an unmarried person is not revoked by a subsequent marriage. Ohio Revised Code 2107.37.
Does Revoking A Subsequent Will Revive A Prior Will Under Ohio Law?
No. Revoking a will shall not revive a prior will under Ohio law unless the terms of the revocation show that it was the testator’s intention to revive and give effect to the testator’s first will or unless, after the revocation, the testator republishes the testator’s prior will. Ohio Revised Code 2107.38.
