Full question:
My dad in anger destroyed his will by tearing it and throwing it in the fireplace in our home. I did manage to save the will from being burnt completely. When this incident happened he was angry and drunk. When we contacted our family lawyer, he said that as the will was destroyed with anintent of revocation, the will has no affect. Is it possible for us to revive the will or is my dad required to make a new will?
- Category: Wills and Estates
- Subcategory: Revival
- Date:
- State: Virginia
Answer:
In Virginia, any will that has been revoked pursuant to Va. Code Ann. § 64.2-410, that is, destroyed or burnt with an intent to revoke the will then the will may be considered as void and of no affect. Further, once the will is revoked per § 64.2-410, then the will may not be revived unless such will is reexecuted in the manner provided under the law. The relevant statutory provisions in this regard are stated below.Va. Code Ann. § 64.2-410 reads:
“A. If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.
B. If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.
C. If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.”
B. If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.
C. If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.”
Va. Code Ann. § 64.2-411 reads:
“Revival of wills after revocation-
Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator's intent to revive the will or codicil is shown.”
Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator's intent to revive the will or codicil is shown.”
Thus, if your dad’s will is revoked pursuant to § 64.2-410 then your dad may not be able to revive it, he may reexecute the will.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
