Many attorney-drafted wills state that all previous wills are revoked. Nevertheless, I advise my clients to physically destroy their old wills. It doesn’t really matter how you do it. You can tear it up, burn it, shred it, or even write “I revoke this will” on each page and sign it. The point is that you do some “physical act” to indicate that you have revoked your old will. You do not need to wait until your new will is drafted. If you would prefer Texas intestacy over the terms of your old will, destroy the old will immediately (please be sure that you understand Texas intestacy laws first). Texas is replete with cases where a will is accepted despite convincing testimony that the testator was in the process of replacing it.
The purpose of destroying an old will is to prevent someone else from attempting to probate that will in Court. You would be amazed to know how often old wills are submitted for probate. You should avoid giving out or making copies of your will. This is because if an original will cannot be located, a copy can be probated, along with testimony of what happened to the original, and a statement that the will was not, to the applicant’s knowledge, revoked. But once a copy of your will leaves your possession, then you can never again be sure that all the copies have been destroyed. Even if you ask your disinherited child for the copy of your old will back, and he gives it to you, he may have made additional copies in the meanwhile. There is no way to tell. The result? A potentially expensive fight in probate court.
In addition to destroying copies which you may have of an old will, you should advise the attorney who drafted that old will that you have made a new one (thus allowing them to destroy, or otherwise annotate the old will with an eye towards preventing an unnecessary will contest).
Similarly, you should avoid signing multiple original wills. If a will cannot be located, the presumption is that the testator destroyed the will, intending to revoke it, which can make the will which is located susceptible to challenge.
Just as a missing original will raises the presumption that it was destroyed by the testator, an undestroyed original will, raises the obvious presumption that it was not revoked. If you have more than one undestroyed will, you run the risk not only that someone will deliberately probate a will which you have revoked, but the risk that they will do so accidentally, or even be forced into probating it. It is especially important to destroy your old will where you have made dramatic changes to who inherits, or where you would prefer Texas intestacy to operate over the terms of your prior will. This is because a person who finds a will of a deceased person has an obligation to submit it to the Court, and if they do not do so, they can be called into Court to show why the will has not been submitted, and then can be ordered jailed until the will is submitted.
There have been multiple cases where someone told us that they had found an old will, but knew a more recent will had been written, but had been unable to find it. If an undestroyed, original will is in existence, it is difficult to persuade the Court that it was revoked.
If you would like to speak to an attorney about challenging a probated will, or replacing an existing will, please contact my office at 936-435-1908 for an appointment in Conroe, Huntsville or The Woodlands. Sugar Land or Stafford residents may call 281-723-2791.
When you write a new will, it is important to make sure that you destroy your old one!