What Are the Requirements in Washington to Have a Will
Valid at Its Making Remain Valid at the Testator’s Death?

1. How Can a Will Be Revoked?
   1. Revocation by the Testator
   2. Revocation by Operation of Law
2. Revival of Wills
3. Conditional Revocation
4. Effect of Ineffective Revocation

 

A document may be a valid Will when made (ie, upon its execution and attestation) but no longer remain available and valid at the Testator’s death, as a result of its in the interim having been lost, inadvertently destroyed, or revoked:

• If lost or inadvertently destroyed, the Will must be proven according to the requirements of RCW 11.20.70 regarding lost or destroyed Wills.  See Procedure for Probating a Lost Will.
• Regarding revocation:

 

1. How Can a Will Be Revoked?   

 

Revocation may be partial — going to one or more provisions of a Will — or total — revoking the entire Will.  Furthermore, revocation may be made by the Testator or by operation of law.

 

1. Revocation by the Testator:  A Testator may revoke his/her Will by either:

• Making a later:
  • Will that expressly revokes, in whole or in part, the prior Will, or
  • Codicil that expressly revokes in part the prior Will.   RCW 11.12.040(1)(a)

  Note that express revocation of a Will may be made only by a document that is also executed with the same formalities as a Will, namely, another Will or a Codicil.  Estate of Peirce, 63 Wash. 437 (1911).

  Example: Will says “I give my Ford to John.”  Later Codicil says “I give my Ford to Mary.” Result: John’s gift is revoked, and Mary takes the Ford.

• Making a later Will or Codicil that has one or more provisions that are inconsistent with a prior Will or Codicil, in which case the inconsistent provisions of the prior Will or Codicil are revoked.   RCW 11.12.040(1)(a)

As a result of a peculiarity of Washington law known as the Deadman’s Statute (RCW 5.60.030), a witness in this procedure cannot be anyone who could gain or lose from the outcome of the case.  Estate of Shaughnessy, 97 Wn.2d 652 (1982); Estate of Tate, 32 Wn.2d 252 (1948).  See The Deadman’s Statute.

• Burning, tearing, canceling, obliterating, or destroying the existing Will, with the intent and for the purpose of revoking it, by either the Testator or by another person in the presence and by the direction of the Testator; furthermore, if the revoking act is done by another person, then:
  • The direction of the Testator, and
  • The other’s acts to revoke —

  Must be proved by two witnesses.  RCW 11.12.040(1)(b)

Problem: Consistent with RCW 11.12.040(1)(b), a Testator may revoke one or more provisions in his/her Will by crossing, lining, or marking them out.  Such partial revocation, however, has not faired well in the Courts, which have established the requirement that a partial revocation made by marking out text in a Will is valid under RCW 11.12.040 but only if it results in an incidental increase in property passing to other Beneficiaries (a “revocation”) but not if it is intended to and does result in either a substantial enhancement of an existing gift or a new gift under the Will (an “alteration”), which would necessarily require the change to be made with the same formalities as making a Will.  Estate of Malloy, 134 Wn.2d 316 (1998).

 

Rather than attempt to differentiate a “revocation” from an “alteration,” 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 the Testator’s marking 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: “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 earrings, might pass muster, while anything of significantly greater value will not.

 

2. Revocation by Operation of Law:  Washington law will effectively revoke a Will if the Testator doesn’t execute a new Will following a significant change in his/her family situation:

1. Loss of Marriage:  Upon one’s return to unmarried status, whether by invalidity or dissolution of marriage, a testamentary gift to the Testator’s prior spouse will be treated as a matter of law as if the prior spouse died on the date of entry of a decree of invalidity or dissolution unless the Will expressly provides otherwise.  RCW 11.12.051
2. Gain of Spouse or Child:  If after making a Will, a Testator either:
   • Marries, or
   • Has or adopts a child —

   And the Will fails to name or provide for the new spouse or child (as the Will is likely to do, since it was made before the marriage, birth, or adoption), then despite the Will, the omitted spouse (RCW 11.12.095) or child (RCW 11.12.091) takes his/her intestate share as a matter of law unless it appears by clear and convincing evidence that the failure was intentional.

 

1. Revival of Wills (Arcane & Forgettable)

 

Bar examiners love to ask questions about “the mad Testator” who seemingly has nothing better to do than make and revoke Wills from one day to the next, giving rise to the doctrines of “revival of a Will” and “dependent relative revocation,” both of which are traps for the unwary.

 

Revival of a Will addresses the following circumstance:

1. Testator makes Will #1.
2. Sometime later, Testator makes Will #2 that revokes Will #1 in whole or in part (if only in part, then Will #2 is in effect a Codicil to Will #1).
3. Sometime later still, Testator revokes Will #2.

Query: What is the effect, if any, of the revocation of Will #2 on Will #1?

• If Will #2 was a true Will and not a Codicil, the revocation of Will #2 will have no effect on the prior revocation of Will #1 (unless the Testator intends otherwise).

  Result: Having revoked Will #2 (which revoked Will #1), the Testator has no Will.  But:

• If Will #2 was not a true Will but, instead, a Codicil (ie, it only partially revoked Will #1), the revocation of Will #2 (ie, the Codicil to Will #1) will revive the provisions of Will #1 that Will #2 revoked (unless the Testator intends otherwise).

  Result: The previously revoked provisions of Will #1 are now “revived” as part of the Testator’s valid Will.  RCW 11.12.080

 

Revival brings back a prior revoked gift or Will (there must be a prior valid revocation for revival to revive it).   Conditional Revocation invalidates a present valid revocation (there must be a present valid revocation in order for it to be invalidated by conditional revocation (95 CJS 426 (2001)).

1. Conditional Revocation (Even More Arcane & Forgettable)

 

Unfortunately, conditional revocation has come to be know as “Dependent Relative Revocation,” although the former phrase describes the doctrine and the latter phrase obfuscates it, so much so as to repeatedly detour the Courts (see Section D below).  Conditional revocation addresses the following circumstance:

1. Testator makes a Will.
2. Sometime later, Testator validly revokes the Will or one or more gifts in it under one or the other of two conditions:
   1. With the intention of promptly make a new Will or a Codicil to the prior Will; or
   2. On an understanding that is both:
      1. Material about the gift, and
      2. Mistaken.
3. Testator dies before:
   1. Making the new Will or Codicil, or
   2. Learning of his/her misunderstanding and correcting it.

Query:  What is the effect of the Testator’s valid revocation, made in effect on the condition that:

• He/she will promptly make a new Will or Codicil, which he/she fails to do before death, or
• His/her understanding is correct, which remains uncorrected to death.

Conditional revocation is the result of real life putting the Courts between:

• The “rock” of one touchstone of the law of Wills — following the Testator’s intent, and
• The “hard place” of another touchstone of the law of Wills — maintaining legal formalities.

These cases present no doubt about what the Testator wanted — and yet, he/she died innocently about the circumstances and before the formalities were undertaken to realize the intent according to law.  Consequently, the Courts:

• Assume that the Testator’s revocation was subject to the unrealized condition,
• Impute intent to the Testator, for example, “I never would have made the revocation had I known that I would die before:
  • Making my intended new Will or Codicil” or
  • Learning the truth about my mistaken belief,”
• Apply the doctrine of conditional revocation (dependent relative revocation),
• Ignore the revocation, and
• Reinstate the Will or provision.  See Estate of Hall, 7 Wn. App. 341 (1972).

Conditional revocation is remarkably illustrated in Estate of Kerckhof, 13 Wn.2d 469, (1942), where:

• The Testator made a Will that gave all of his estate to his brother Louis, whom he believed was his only living relative.
• Later on, his lawyer told him that because Louis was his only relative, Louis would receive all of his estate regardless of whether the Testator died with the Will or intestate.
• Relying on his lawyer, the Testator told his lawyer to destroy the Will, which the lawyer did.
• Following the Testator’s death, numerous other brothers and sisters appeared and claimed their intestate share.

The facts in Kerckhof fell squarely within the requirements for conditional revocation: A valid revocation made on the basis of a mistaken belief (ie, that the Testator’s only heir was his brother Louis) that went uncorrected to death.  Unfortunately, the Supreme Court found the doctrine of conditional revocation inapplicable and upheld the trial Court’s refusal to probate the destroyed Will.

 

 

Conditional Revocation requires a valid revocation — one can’t invalidate an ineffective act … it is already invalid.   Unfortunately, Ineffective Revocation is often confused with the circumstances calling forth conditional revocation.  See, for example, the following cases, where the Courts fortunately reached the result consistent with law (ie, the original gift remained in force) but for the wrong reason: Estate of Eastman, 61 Wn. App. 907 (1991), Estate of Becklund, 7 Wn. App. 10 (1972), and Estate of DeLion, 28 Wn.2d 649 (1947). These cases are not conditional revocation cases (as found by the Courts) but, instead, ineffective revocation cases.

1. Effect of Ineffective Revocation (Not So Arcane or Forgettable)

 

The following, third situation, although confusingly similar, falls into neither the revival nor the conditional revocation category:

• Testator successfully makes Will #1,
• Testator either:
  • Unsuccessfully makes Will #2, attempting but failing to revoke Will #1, or
  • Unsuccessfully marks out a gift in Will #1, attempting but failing to revoke that gift.

Query A:  What is the effect of the unsuccessful making of Will #2 & its ineffective revocation of Will #1?

• Will #1 remains valid, as Will #2 was invalid and therefore has no effect.
• Will #1 is not revived, because it was never revoked.
• The attempted revocation of Will #2 is not invalidated due to conditional revocation, because Will #2 was never valid to begin with.

Query B:  What is the effect of the unsuccessful marking out of the gift in Will #1 & its ineffective revocation of that gift?

• The gift remains valid, as its revocation was invalid and therefore has no effect.
• The gift is not revived, because it was never revoked.
• The attempted revocation of the gift is not invalidated due to conditional revocation, because the revocation was never valid to begin with.