How can a will be revoked in Oregon?
Full Question:
My parents made a will when they were newly married. It’s been 20 years to their marriage and now they want to make a new will. How can my parents revoke their will? They live in Oregon.
03/16/2017 |
Category: Wills and Es... » Revocation |
State: Oregon |
#34051
Answer:
A new will can be made in order to revoke or alter the prior will.
If a will is burned, torn, canceled, obliterated or destroyed, with the intent and purpose of the testator of revoking the will, then the will is revoked. This act of revocation can be done by some other person one the direction and presence of the testator.
A partial revocation of a provision in a will by one or more physical acts mentioned above would not cause a valid revocation.
A will in order o be revived, has to be re- executed or another will can be re-executed in which the till may be incorporated by reference.
In Oregon, a will is revoked by a subsequent marriage of the testator if the testator ius survived by his/her spouse unless:
The will makes it clear that the testator doesn’t want the will to be revoked by the subsequent marriage or that it was drafted under circumstances establishing that it was in contemplation of the marriage.
There exists a written pre marriage contract between the spouse and the testator that makes provision for the spouse or provides such spouse the rights in the estate of testator.
The testator executed the will after entering into a registered domestic partnership under.
If the testator and the spouse get divorced or their marriage is declared invalid or annulled then, all the provisions in the will that is for the surviving spouse is revoked.
If the testator adopted kids after executing the will, or he has kids after executing the will, and such kids have no mention in the will. And if the will makes it clear that the testator had one or more kids living when the will was made and the testator made no transfer for the one or more kids then such omitted child would also not get a share of estate of the testator disposed of by the will.
If the testator had one or more children living when the testator executed a will provision is made in the will for one or more of the living children, a pretermitted child is entitled to share in the estate of the testator in the following manner:
The pretermitted child may get a share only in the portion of the estate that is given to the living children by the will.
The share of each pretermitted child shall be the total value of the portion of the estate given to the living children in the will, which is to be divided by the number of pretermitted children. To that the number of living children for whom provision, other than nominal provision, is made in the will, is to be added.
To the extent feasible, the interest of a pretermitted child in the estate is of the same character.A more details information on revocation on wills can be seen in the relevant law stated below.
ORS § 112.275:
Manner of revocation or alteration exclusive.
A will may be revoked or altered only as provided in ORS 112.285 to 112.315 or section 29 or 30 of this 2015 Act.
ORS § 112.285:
Express revocation or alteration.
(1) A will may be revoked or altered by another will.
(2) A will may be revoked by one or more physical acts by being burned, torn, canceled, obliterated or destroyed, with the intent and purpose of the testator of revoking the will, by the testator, or by another person at the direction of the testator and in the presence of the testator. The injury or destruction of the will by a person other than the testator at the direction and in the presence of the testator shall be proved by at least two witnesses.
(3) A partial revocation of a provision in a will by one or more physical acts as described in subsection (2) of this section is not a valid revocation. One or more physical acts that affect one or more provisions of a will but not the entirety of the will are not effective to revoke those provisions, but clear and convincing evidence may show that the testator intended by the physical act or acts to revoke the entirety of the will.
ORS § 112.295:
Revival of revoked or invalid will.
If a will or a part thereof has been revoked or is invalid, it can be revived only by a re-execution of the will or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.
ORS § 112.305:
Revocation by marriage.
A will is revoked by the subsequent marriage of the testator if the testator is survived by a spouse, unless:
(1) The will evidences an intent that it not be revoked by the subsequent marriage or was drafted under circumstances establishing that it was in contemplation of the marriage;
(2) The testator and spouse entered into a written contract before the marriage that either makes provision for the spouse or provides that the spouse is to have no rights in the estate of the testator; or
(3) The testator executed the will after entering into a registered domestic partnership under ORS 106.300 to 106.340 or a similar law in another state and the testator subsequently marries the domestic partner.
ORS § 112.315:
Revocation by divorce or annulment.
Unless a will evidences a different intent of the testator, the divorce or annulment of the marriage of the testator after the execution of the will revokes all provisions in the will in favor of the former spouse of the testator and any provision therein naming the former spouse as executor, and the effect of the will is the same as though the former spouse did not survive the testator.
ORS § 112.405 :
Children born or adopted after execution of will; pretermitted children.
(1) As used in this section, "pretermitted child" means a child of a testator who is born, adopted, or conceived as described in section 27 (3) or (4) of this 2015 Act, after the execution of the will of the testator, who is neither provided for in the will nor in any way mentioned in the will and who survives the testator.
(2) If a testator has one or more children living when the testator executes a will and no provision is made in the will for one or more of the living children, a pretermitted child shall not take a share of the estate of the testator disposed of by the will.
(3) If a testator has one or more children living when the testator executes a will and provision is made in the will for one or more of the living children, a pretermitted child is entitled to share in the estate of the testator disposed of by the will as follows:
(a) The pretermitted child may share only in the portion of the estate devised to the living children by the will.
(b) The share of each pretermitted child shall be the total value of the portion of the estate devised to the living children by the will divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the will.
(c) To the extent feasible, the interest of a pretermitted child in the estate is of the same character, whether equitable or legal, as the interest the testator gave to the living children by the will.
(4) If a testator has no child living when the testator executes a will, a pretermitted child shall take a share of the estate as though the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the pretermitted child and that other parent survives the testator and is entitled to take under the will.
(5) A pretermitted child may recover the share of the estate to which the child is entitled, as provided in this section, either from the other children under subsection (3) of this section or from the testamentary beneficiaries under subsection (4) of this section, ratably, out of the portions of the estate passing to those persons under the will. In abating the interests of those beneficiaries, the character of the testamentary plan adopted by the testator must be preserved so far as possible.
