I made a Will in 1990 but I now want to revoke it. How do I revoke a Will in Alabama?
Full Question:
I made a Will in 1990 but I now want to revoke it and make a new Will. How do I revoke a Will in Alabama? I made the first Will I before I was married and had children.
03/02/2017 |
Category: Wills and Es... ยป Revocation |
State: Alabama |
#33207
Answer:
Here are the methods to revoke a Will in Alabama.
- Executing a new Will revokes any prior Wills either by expressly stating or by inconsistent provisions.
- The testator can revoke a Will by destroying, canceling or obliterating it with the intent to revoke.
- Another person can revoke the testator's Will in the same manner with the consent and direction of the testator and the presence of at least two witnesses.
- If a divorce or annulment is obtained after executing a Will, any provisions relating to the former spouse are revoked. If there is a remarriage of the spouse the Will is revived.
- A Decree of Separation of Husband and Wife does not revoke the Will of the spouses.
- If a second Will is revoked it does not make the first Will effective again unless the intent to do so is shown.
- Property devised to the former spouse is treated as if the spouse died before the testator which means the wife would receive the same he or she would receive if the his or her spouse had died without a Will.
- A marriage after execution of a Will by a spouse does not effect the Will if it appears from the will:
- that the omission was intentional, or
- that the spouse provided for the surviving spouse by transfer outside the will and intent is shown that the transfer was in lieu of a testamentary provision for the spouse.
- If a child is born or adopted after a Will is made the child will receive what the child would have received under intestate laws.
- A child born or adopted after a Will is made does not receive a share of the estate if any of the following are true:
- It appears from the will that the omission was intentional;
- When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
- The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
- If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
- If the Spouse or Child are entitled to inherit as stated above then the provisions in the Will are abated to allow for transfer of the share for the spouse or child in the following order:
- Property not disposed of by the will;
- Residuary devises;
- General devises;
- Specific devises.
The relevant Alabama Laws and Statutes are below. These laws should be read for completed details of each statement above.
Section 43-8-136
Revocation by writing or by act; when witnesses required.
(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.
(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.
(Acts 1982, No. 82-399, §2-507.)
Section 43-8-137
Revocation by divorce or annulment; revival by remarriage; no revocation by other changes or circumstances.
If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of section 43-8-252(b). A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of section 43-8-252(b). A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
(Acts 1982, No. 82-399, §2-508.)
Section 43-8-138
When will revived on revocation of subsequent will.
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 43-8-136, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations in writing, signed by the testator and attested as prescribed in section 43-8-131, that he intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
(Acts 1982, No. 82-399, §2-509.)
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 43-8-136, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations in writing, signed by the testator and attested as prescribed in section 43-8-131, that he intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
(Acts 1982, No. 82-399, §2-509.)
Section 43-8-90
Omitted spouse.
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 43-8-76.
(Acts 1982, No. 82-399, §2-301.)
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 43-8-76.
(Acts 1982, No. 82-399, §2-301.)
Section 43-8-91
Pretermitted children.
(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devisees made by the will abate as provided in section 43-8-76.
(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devisees made by the will abate as provided in section 43-8-76.
(Acts 1982, No. 82-399, §2-302.)
Section 43-8-76
Order of abatement.
(a) Except as provided in subsection (b) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises;
(4) Specific devises.
For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the value of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
(a) Except as provided in subsection (b) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises;
(4) Specific devises.
For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the value of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
