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In a word: “No!” The law is unclear, and you would be taking your chances. On the one hand, RCW 11.12.040 provides “A will, or any part thereof, can be revoked: … (b) By being … canceled, [or] obliterated, … with the intent and for the purpose of revoking the same, ….”, so one would think that a Testator could revoke a gift in his/her Will simply by physically crossing, lining, or marking it out. On the other hand, Washington case law on this issue is confused and not in favor of Testators. In short, if you want to change your Will’s provisions, use an alternative to revising your existing Will.
| Crossing Out a Will Provision: The most recent case on the effect of a Testator’s crossing out a Will provision is Estate of Malloy, 134 Wash. 2d 316 (1998), which stands for the proposition that a change to a Will may be made under RCW 11.12.040 only if it operates as a “revocation” and not as an “alteration or modification” of the Will. Rather than attempt to differentiate a “revocation” from an “alteration or modification,” suffice it to say that the only Washington case found where the Court validated the Testator’s crossing out a Will provision is Estate of Appleton, 163 Wash. 632 (1931). There, the Testator’s Will read as follows (with her crossings out shown in blue italics): “I desire that my niece, Lucile Hicks, have my [list of jewelry]. I give my niece, Mable Hicks, my [ear-rings].” In Appleton, the Court held that the crossing out of the gift of the ear-rings was “a true revocation, because canceling of that bequest did not so ‘vitally enhance’ the residuary bequests as to impair those bequests or any portion of the Will.” At page 644. Contrast Appleton, however, to Estate of Eastman, 61 Wn. App. 907 (1991), where the Testator’s Will read as follows (with his crossings out shown in blue italics): “to my sons, Michael + Edward, in equal shares, share and share alike.” In Eastman, the Court invalidated the Testator’s attempted disinheritance of Edward and restored the Will so that that two sons took equally. One way of interpreting this line of cases is that crossing out a bequest of an item of modest value, such as ear-rings, might pass muster, while anything of greater value will not.Bottom-line: Don’t cross-out, line-out, or mark-out any Will provision. If you want to change a gift in your current Will, execute a new Will. |
| A 1912 South Carolina Case: Brown v. Brown, 91 S.C. 101, 74 S.E. 135 (1912). There, the Testator’s Will read as follows (with his crossings out shown in blue italics): “I will to my nephew, Fred Haltiwanger, one thousand dollars; to my nephew, Fred Brown Ledbetter, one thousand dollars; to my nieces, namesakes of my mother, Julia Ledbetter, Julia Haltiwanger, and Julia Brown one thousand dollars each; to Ezekial Martin, my colored servant, two hundred dollars, and it is my desire that he use this to pay for his home. … I will and devise five hundred dollars to Mrs. Zoe La Foy and John La Foy to assist them in purchasing a home.” In Brown, the South Carolina Supreme Court held that “The increase of the residuary estate which may result from the obliteration is not a new testamentary disposition, but a mere incidental consequence resulting from the [Testator’s] exercise of [South Carolina’s version of RCW 11.12.040]” and validated the Testator’s crossings out. WASHINGTON PROBATE urges you not to rely on an almost 100-year old South Carolina case — Don’t attempt to change your Will by crossing, lining, or marking out a provision. |
A Codicil is “a Will that modifies or partially revokes an existing or earlier Will. A Codicil need not refer to or be attached to the earlier Will.” RCW 11.02.005(9) Being a Will itself, a Codicil must be executed with the same formalities as Wills. Also, by using a Codicil, a Testator necessarily:
Given that executing a Codicil is no simpler than executing a Will, in the interests of efficiency, simplicity, and privacy, most Testators prefer to execute a new Will in order to change the provisions of a prior Will unless the change represents something that is not private or already public, such as a change:
For the reasons stated above, the safest way to change a provision of your current Will, and especially a gift in it, is to execute a new Will that contains the changed provision.