Can You Cancel a Will?

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A will is an important document since it sets forth who will receive your property following your death and who will be in charge of settling your estate. Without a will, your property will be distributed as set forth in your state’s intestacy laws, and you may not like their distribution scheme.

So you’ve signed a will, but now one of the people you’ve named in your will has died, or a child or grandchild who was to receive a portion of your estate is in trouble with the law, going bankrupt, getting divorced, or simply exhibiting behavior you do not approve of. Now leaving them something under your will seems like it may not be such a great idea after all. Can you just tear it up and start over?

Destroying your original will certainly is possible, but someone may try to probate an existing copy, thereby defeating your wishes. So it's best either to destroy all copies (but do you really know where they all are?) or to have an attorney prepare an amendment (a “codicil”) to that will. This codicil will indicate that you wish your property not to pass as set forth in your previous will dated such and such, but instead to pass as if you had no will, per the intestacy statute of your state of residence. This way, even if a copy turns up, your later will trumps the earlier will so that your wishes will be carried out.

Note that a well-drafted will should always include the statement “hereby revoking all prior wills signed by me,” or words to that effect. This is to make it clear that your new will is not deemed an amendment to an existing will, but is a complete replacement to any prior wills.

Can’t you just draw a line through the part(s) of your current will that you do not like, and then write your initials next to the crossed-out text? This is not recommended for a number of reasons. First of all, when you signed your will, you probably had two witnesses and a notary also sign the document (these requirements vary from state to state). But your strike-through has no witnesses and no notary, so it may not be deemed an effective change. Without witnesses testifying that you were “of sound mind” at the time of the change, someone who prefers the way the will read before may attempt to challenge the change.

Also, you may not have dealt with what happens to the property whose disposition you just changed, so that it will actually go to someone you had not planned to receive the property. In any event, the will will surely wind up in court where the effect of your strike-out will be argued by attorneys representing different family members, at great expense to everyone involved, and perhaps generating bad feelings between family members that may persist for years.

The lesson to all this is not to try to make a quick and easy change to your will to try to save time and money (by avoiding hiring an attorney). You may just wind up causing your family to spend a LOT more time—and money—straightening things out after your death!

K. Gabriel Heiser is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.

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8 Comments

My mom had a Will, Living Trust, Financial and Health POA's, a Healthcare Directive - you name it. She thought everything was taken care of. Then my sister (the name Successor Trustee/Executor) passed away. It was then that I pulled out the documents and found that some of them did not hold proper instruction on 'if the named successor is no longer able to perform their responsibilities' clause. Bank accounts and other assets had changed.

My suggestion to people is that all Trust/Will legal documents be re-visited every 5 yrs., max., with any major Medicaid law change or life-altering event within the family. Thank you for this forum and article.
Really reviewing and updating all legal is a good idea every decade or when there is a significant change.

As MERP ramps up in the states, I'd bet that family who are dealing with an intestate death will find that since the state is owed estate recovery, that the state gets priority over any family. If your state escheats everything to the state for interstates, I would imagine it places the state in the drivers seat for disposition on estates assets.
Attorney Heiser, thank you for that good article.

My parents had an old Will where they had bequeath stock to certain people. Fast forward and most of those people have passed on years ago. The Will also mentioned "their heirs" for the said stock bequeaths but didn't say immediate heirs or going back through the whole family tree heirs. I had nightmares of thinking I would need to find who was related to my Dad's late sister-in-law who I didn't really know.

Anywho, I was able to get my parents [who are in their mid-90's] to rewrite their Wills with an Elder Law attorney. It was slow going getting my parents there, but I finally found if I mentioned that the Commonweath could get most of their estate if their Will wasn't updated perked up my Dad's ears [sometimes we need to stretch the truth to get an elder to pay attention]. New Wills have been signed :)