How can a will be revoked in Alabama?
Full Question:
My husband made a will before he got married to me. Now he wants revoke his will and make a new one. How can he go about it? We live in Alabama.
03/10/2017 |
Category: Wills and Es... ยป Revocation |
State: Alabama |
#33708
Answer:
- Your husband can revoke his will either by making another will and stating in the new will his intention of revoking the old will.
- The old will would be revoked if the latest will is inconsistent with the old will.
- Another way he can revoke the will is by burning, tearing, obliterating, or destroying the will with the intention of revoking it. This he can do either himself or by directing someone else to do it in his presence.
- If your husband gets someone else to revoke his will by burning, tearing, obliterating, or destroying, then there need to be two witnesses to prove that someone else with the testator’s consent revoked the will.
- If your husband divorces you or your marriage is annulled after the execution of his Will, then any provisions relating to the former spouse (you) are revoked. In case you guys remarry then the Will would get revived.
- A decree of separation would not revoke the will.
- If the testator marries after executing a will, it will not affect the right of the spouse of the testator until it appears from the will:-that the testator intentionally omitted his/her spouse, or that the testator has provided for his /her surviving spouse by some transfer outside the will in lieu of a testamentary provision for the spouse.
- If the testator adopts or has kids after the execution of the will, and the will has no provision for such child, then the child would receive his share that he would have received in case there was no will unless:
- The will shows that the testator intentionally omitted providing for the child, or
- If the testator had other kids at the time of exaction of the will, and the testator has given majority of his estate to the other parent of the omitted child, or
- The testator has made a transfer outside the will with the intention that such transfer will be in lieu of a testamentary provision.For more knowledge on the laws relating to revocation of will and rights of spouse and children, you can have a look at these Alabama laws.
Code of Ala. § 43-8-136 :
“Revocation of wills.
(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.”
Code of Ala. § 43-8-137 :
“Divorce or annulment revokes will; revival of will upon remarriage to former spouse.
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.”
Code of Ala. § 43-8-138:
Revival of prior will upon 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.”
(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.”
Code of Ala. § 43-8-90:
“Spouse who married testator after execution of will.
(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.”
(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.”
Code of Ala. § 43-8-91:
“Pretermitted heirs.
(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.”
