Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.
Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.
The testator may have attempted to destroy it, or may have left it behind, not considering that it could also be probated, which would result in an ineffective revocation. If the wills are completely different, the court may probate both, but will most likely find that the new will revokes the first completely. If only a few differences exist in the new will, the court will read the read the new will as effective.
How Courts Determine Intent and Precedence
Courts will generally look to the testator’s intent when determining which will should be probated. To determine the meaning contained in the instrument, courts look at who drafted the document, the circumstances under which the document was drafted, as well as how the words were used in the document. The court will also assess the testamentary capacity of the testator at the time the new will was executed.
The testator must be cognizant of the nature of the act, what he has in assets and the extent of his property, as well as the ability to understand what his disposition in the will results in. The will must be executed by the signing of the testator, as well as two disinterested witnesses, at the same time. Lastly, the will must be free of any undue influence, absence of mistake, duress or fraud. If any of these factors are found to exist by the court, the will is held invalid and the other will is then probated.