FAQs About Wills

How Do I Revoke a Will in North Carolina?

by Rania Combs

Your current Will likely reflected all your wishes when you signed it, but things may have changed.

For example, perhaps you were single when you signed your Will but recently got married. Or maybe you were childless when you signed your will, but now you are a parent. Maybe the value and character of your assets have changed.

Whatever the reason, your Will may no longer accurately reflect your wishes, and you may want to revoke it. This article discusses how to legally revoke your Will in North Carolina.

Revoking of a Will by Subsequent Writing

One way to revoke your Will is by simply writing a new Will that states that you intend to revoke all Wills you have previously signed. If you sign your new Will in compliance with all the requirements of a valid Will in North Carolina, then your new Will will revoke your previous Will.

You can also impliedly revoke a prior written Will by making an inconsistent bequest in a new written Will. In such a situation, the two Wills would be read together and the provisions of the new Will will override inconsistent provisions of the old Will.

Revoking your Will by Codicil

Perhaps your Will distributes your property exactly the way you want, but you want to make minor changes. For example, you no longer want to make a specific gift of property to a friend with whom you’ve lost touch. Or perhaps you simply want to appoint someone different as your executor.

It is not necessary to completely revoke your Will. In North Carolina, you can amend or supplement your Will with a codicil.

A codicil is a written document you can use to make minor changes to your Will while keeping your original Will in full force and effect.

However, you must execute a Codicil with the same formalities as a written Will.  Additionally, codicils are easier to misplace, whether intentionally or inadvertently, especially if you sign multiple codicils. There is also an increased chance that sections the codicil amends may inadvertently conflict with other provisions in the Will. Therefore, it’s important to understand how each change affects other sections in your Will.

While some situations exist where signing a codicil might be the best option, it is often best to simply sign a new Will. Before the invention of word processors, codicils made sense for making minor changes. After all, rewriting or retyping the full document took a great deal of time. However, in the age of word processing, the attorney who drafted your Will can easily make simple changes. As an added bonus, the attorney can confirm that none of the changes conflicts with other provisions in your Will.

Revoking a Will by a Physical Act

You can also revoke your Will by a physical act.

The statute specifies that you can revoke your written Will by burning it, tearing it, canceling it, obliterating it, or destroying it with the intent and for the purpose of revoking it.

What if you are physically incapable of doing any of those things because of a disability? In that case, you can direct another person to do any of those things in your presence.

If you destroy your Will without the intent to revoke it or intend to revoke it without destroying it, you will not have revoked your Will.

Revoking a Nuncupative Will

You can revoke an oral Will by making a subsequent oral Will. You can also revoke an oral Will by making a subsequent written Will or codicil.

Remember that in North Carolina, you can only dispose of personal property using an oral Will. To be valid, the law requires that the person making the Will have a terminal illness or be in imminent peril of death and not survive the illness or imminent peril. Additionally, at least two competent witnesses must simultaneously hear the statement after being specifically asked to bear witness to the statement.

Does Divorce Revoke a Will Signed During Marriage?

Dissolution of a marriage by divorce or annulment after making a Will does not revoke a Will. However, if you signed your Will while you were married, but your marriage later ends in divorce or annulment, all provisions in your Will in favor of your ex-spouse will be revoked. Provisions of your Will that are revoked solely because of divorce or annulment can be revived if you remarry your former spouse.

Presumption of Revocation

If your Will was last seen in your possession and control, but no one can find it after your death, there is a rebuttable presumption that you revoked it. The presumption can be rebutted by evidence that the Will was lost or accidentally destroyed. For example, the executor may be able to present evidence that a house fire or a flood caused by a storm surge destroyed your Will.

However, there are no guarantees your beneficiaries will be able to overcome the presumption. Therefore, if you know you’ve lost your will, you should sign a new one.

If you intend to revoke your will, it is important that you do it the right way. Otherwise, you may believe you have modified or revoked your Will when in fact you have not. Your lawyer can help you make sure your Will carries out your wishes.

About Rania

Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.

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