Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, May 30, 2008

What to do about revoked wills?

WillAssume that you have prepared Client’s will and you have retained the original will in your firm’s safe deposit box.  Client then executes a subsequent will.  What should you do with the “old original.”

This is the topic of a recent article by Helen Gunnarsson entitled Where there are two wills, is there a way?, 96 Ill. B.J. 232 (2008).  Here is an excerpt from her article:

755 ILCS 5/6-1(a) provides in relevant part that "[i]mmediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county...." Subsection (b) provides that a person who willfully secretes a will for 30 days after learning of the testator's death may, upon conviction, be sentenced as in cases of theft of property classified as a class 3 felony.

Most lawyers who participated in the discussion expressed no doubt about the proper procedure under the statute. Oak Park lawyer Joel Schoenmeyer said, "I seem to recall a Judge...addressing this in his courtroom by telling an attorney that he was under a duty to file all [w]ills made by the decedent, because it was the court's job to decide which was the valid one. Since then I've always gone by the adage 'File 'em all and let God (the Judge) sort 'em out.'" * * *

But other lawyers differed, noting that subsection (a) of the paragraph cited speaks of "the" will, and not, for example, "an original" will. "I don't think a person can have more than one will," opined Salem lawyer Curt Ferguson.

Noting that "[p]rior wills are (almost universally) revoked by subsequent wills," Chicago lawyer Thomas W. Williams agreed. "Prior wills are no longer wills. There is only one 'Last Will and Testament.'" * * *

But, wondered South Holland lawyer Scott Dillner, "why wouldn't you, with the client's permission of course, rip up the old will upon signing a new one?" Good question, agrees Schoenmeyer, who says he counsels all of his estate planning clients to do just that.


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I suppose tearing up the old Will may be a good idea, unless that new Will may (for whatever reason) later be challenged and the client would prefer his/her assets pass under the prior Will and not State law. Also, if the prior Wills are fairly consistent with the newer one, it may be a bargaining chip to use against those disinherited heirs that later threaten to sue the estate. It's fact and case specific, in my opinion.

Posted by: J | May 30, 2008 12:58:38 PM

I think it is a mistake to tear up the old will. The better practice in my experience is to just write on the old will that it has been revoked by a later document, dated xxxx. In most situations, destroying the old will is not going to be a problem but what happens in those few cases where the later will is defective or not probated on other grounds? Not having the original of the old will, or at least a copy, just leads to more problems.

Posted by: Jim Hartnett | May 31, 2008 10:00:46 AM

I have several questions about wills. I have a family member that just filed 2 wills on June 3rd for his deceased parents with the probate court. When they went to court in TX it was not contested. He was given the letter of testamentary from the court. That same day he went to the deceased person's home to inventory everything. Another family member ,a grandson that was a local in the town, showed up with the constable and said he had a will. He went back and got his will from 2006. The constable knowing that the first family member had a letter from the court still made him leave. The next day the 2nd guy filed his will for probate. His attorney faxed over a letter with his will to the attorney that the trial would be in 2 weeks for guy#2. The grandson got the grandfather to make a will giving everything to himself and cutting out guy #1. The grandfather had senile dementia really bad in 2007 to 2008 and it was in his medical records from the nursing home. He can find no other medical records so far. The constable let guy #2 stay so I am sure he got everything and any records because nothing but trash was to be found. They have the good ol'boy system going strong in this small east TX town. The house was waste high in trash. The will guy#2 had made was incorrect on several issues. He had the 2 daughters names wrong. Caroline was one daughters name and it shows on her birth certificate. It had her down as Carolyn Neely Souther. Her true name was Caroline Neely Southern. She went by Carol until the mid 90's. Then she started going by Carolyn. She hadn't seen her father since around 1980. None of the children have had a relationship in at least 30 years because of their step mother. She died in 2004. We contacted him after that and he said he didn't have any children or grand children. That's another story. Anyways, the second child mentioned was Kathy Neely Walker. Her real name was Mary Cathrine with a C and was never called Kathy. Shouldn't someone know at least the first names of there children. The POA and will were made at the same time. Here is where it gets fishy! The POA was dated May 8th 2006. The will says it was made on May 8th 2005 and then on the notary section she changed the 5 to a 6 with a pen and it said May 8th 2006. The rest of the will and where the witnesses signed say 2005. I think they did that to try to act like it was a year earlier in case someone tried to contest it and say he was incompetent. Maybe there were records from 2006 showing his senile dementia. The medical records from 2007-2008 from the nursing home state that he had senile dementia. The staff at the nursing home told us that the grandson said his children were all dead. Also, when we called the funeral home they said they did not have anyone by that name. His daughter had to go up there and show her drivers license and that she was the next of kin before they admitted they had him. They were told not to let anyone know. Now we have run into walls everywhere. The notary wont return our attorneys calls. The knew attorney which is also some type of traffic fine judge wont return his calls. Our attorney and us have gotten hit by the good ol' boys bad. The attorney that he went to is now the county judge there. To make matters worse the attorney and his spouse were his witnesses also. Is there anything we can do? Please help!! It is a valuable estate with land and a really good oil well. It seems like there is no hope since he is a well like public voted official. Please give any feedback asap!!!

Posted by: Need help fast | Jun 20, 2008 12:39:17 AM

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