How can a will be revoked in North Carolina?
Full Question:
My boyfriend had made a will when he was married to his ex-wife. Now that they’re divorced what happens to the provision in the will that are related to my bf’s ex-wife? Also, tell me how a person can revoke his will in North Carolina
03/16/2017 |
Category: Wills and Es... » Revocation |
State: North Carolina |
#34049
Answer:
A new will can be made to revoke the prior one. Or some sort of revocatory writing can be made in the manner a will is made and executed, in order to revoke the prior will.
A will is revoked when it is burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking.
A will is not revoked by a subsequent marriage of the testator. Thus, the surviving spouse may claim for an elective share when there is a will made prior to the marriage.
When a person divorces after making a will or if his marriage is dissolved by annulment or any other manner, it won’t revoke the whole will but only those provisions are revoked that are related to the former spouse of the testator.
When the testator fails to provide for kids that are born or adopted after the execution of the will, then such kids would be entitled to a share that they would receive if there was no will, unless:
The testator has made some provision in the will for the child, whether adequate or not;
It is evident from the will itself that the testator intentionally did not make specific provision in it for the child;
The testator had children living when the will was executed, and none of the testator's children actually take under the will;
No will can be revived unless it is re executed or another will is executed in which the revoked will or part thereof is incorporated by reference.A further detail in revocation on wills is given below. Please have a look at the relevant statutory provisions.
N.C. Gen. Stat. § 31-5.1 :
Revocation of written will
A written will, or any part thereof, may be revoked only
(1) By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or
(2) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in the testator's presence and by the testator's direction.
N.C. Gen. Stat. § 31-5.3 :
Will not revoked by marriage; dissent from will made prior to marriage
A will is not revoked by a subsequent marriage of the maker; and the surviving spouse may petition for an elective share when there is a will made prior to the marriage in the same manner, upon the same conditions, and to the same extent, as a surviving spouse may petition for an elective share when there is a will made subsequent to marriage.
N.C. Gen. Stat. § 31-5.4:
Revocation by divorce or annulment; revival
Dissolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator's former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of appointment on the former spouse or purported former spouse and any appointment of the former spouse or purported former spouse as executor, trustee, conservator, or guardian. If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse or purported former spouse.
N.C. Gen. Stat. § 31-5.5:
After-born or after-adopted child; children born out of wedlock; effect on will
(a) A will shall not be revoked by the subsequent birth of a child to the testator, or by the subsequent adoption of a child by the testator, or by the subsequent entitlement of an after-born child born out of wedlock to take as an heir of the testator pursuant to the provisions of G.S. 29-19(b), but any after-born, after-adopted or entitled after-born child born out of wedlock shall have the right to share in the testator's estate to the same extent the after-born, after-adopted, or entitled after-born child born out of wedlock would have shared if the testator had died intestate unless:
(1) The testator made some provision in the will for the child, whether adequate or not;
(2) It is apparent from the will itself that the testator intentionally did not make specific provision therein for the child;
(3) The testator had children living when the will was executed, and none of the testator's children actually take under the will;
(4) The surviving spouse receives all of the estate under the will; or
(5) The testator made provision for the child that takes effect upon the death of the testator, whether adequate or not.
(b) The provisions of G.S. 28A-22-2 shall be construed as being applicable to after-adopted children and to after-born children, whether legitimate or entitled children born out of wedlock.
(c) The terms "after-born," "after-adopted" and "entitled after-born" as used in this section refer to children born, adopted or entitled subsequent to the execution of the will.
N.C. Gen. Stat. § 31-5.6:
No revocation by subsequent conveyance
No conveyance or other act made or done subsequently to the execution of a will of, or relating to, any real or personal estate therein comprised, except an act by which such will shall be duly revoked, shall prevent the operation of the will with respect to any estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of the testator's death.
N.C. Gen. Stat. § 31-5.7:
Specific provisions for revocation exclusive; effect of changes in circumstances
No will can be revoked in whole or in part by any act of the testator or by a change in the testator's circumstances or condition except as provided by G.S. 31-5.1 through 31-5.6 inclusive.
N.C. Gen. Stat. § 31-5.8:
Revival of revoked will
No will or any part thereof that has been in any manner revoked can, except as provided in G.S. 31-5.4, be revived otherwise than by a reexecution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference.
