While a last will and testament is executed during a person’s lifetime, the will does not become effective until the person’s death in North Carolina. Oftentimes, a will maker may change his or her mind as to whom he or she wants to leave his or her property. This change in mindset may because of a life altering event, such as marriage, the birth of a child, or divorce, or because of a new relationship with a person not previously mentioned in the will, or even because of a deteriorating relationship with a person who is to take under the will. If a will maker does change his or her mind after executing a will, the will maker can revoke it, so long as he or she still has the testamentary capacity to do so.
North Carolina General Statute (G.S.) 31-5.1 details the three methods by which a valid will may be revoked. They include revocation by (i) a subsequent writing, (ii) a physical act, (iii) or operation of the law.
Revocation by Subsequent Writing
North Carolina G.S. 31-5.1 permits a will maker to revoke his or her will by executing a later written instrument. Unlike some states, North Carolina allows an entire will, or just a portion of the will, to be revoked. This revocation may be in the form of a subsequently written will, a codicil, or any other writing expressly declaring the will maker’s intent to revoke the will. However, the subsequent written instrument must be executed under the same formalities as are required for the execution of a will.
It is also worth noting that a nuncupative will, also known as an oral will, cannot revoke an attested will (formal written will) or holographic will (handwritten will) because the nuncupative will is not a writing. Even so, a nuncupative will may revoke a later executed nuncupative will, or by a subsequent writing as described above.
Revocation by Physical Act to the Will
If done in the correct manner, physically doing certain things to a will may be deemed enough to revoke the will in question. In order for a physical act to revoke a last will and testament, several elements must be met. Specifically, North Carolina G.S. 31-5.1(2) requires all of the following:
- The will must be burnt, torn, canceled, obliterated, or destroyed;
- The physical act must be simultaneous with the intent that the physical act revoke the will; that is, a physical act without the intent to revoke is insufficient; and
- The will maker himself must perform the act, or if another person performs the act, it must be done in the will maker’s presence and at his or her direction.
Revocation by Operation of Law
There are certain life events that commonly happen in a person’s life that may impact his or her last will and testament. People oftentimes have misconceptions about how the occurrence of these life events, whether it be marriage, birth of a child, or divorce, effects a will that was in place prior to the life event happening. The North Carolina General Statutes set forth how a will should be treated in various instances, some of which are discussed below.
If a person executes a valid will in North Carolina and then later gets married, the will is not revoked by the subsequent marriage of the will maker. If the will maker later dies with the will still being a valid will, his or her surviving spouse will be entitled to petition the court for an elective share of the estate even though he or she is not mentioned in the will that was executed prior to the marriage.
Marriage Plus Birth or Adoption of a Child
When a person executes a valid will in North Carolina and then later has a child, whether by birth or adoption, the will is not revoked by the subsequent birth or adoption of the child. If the will maker later dies, the child born or adopted after the execution of the will still has the right to share in the will maker’s estate to the same extent he or she would have shared if the will maker had died without a will unless:
- The will maker made some provision in the will for the child, whether adequate or not;
- It is apparent from the will itself that the will maker intentionally did not make specific provision therein for the child;
- The will maker had children living when the will was executed, and none of the will maker's children actually take under the will;
- The surviving spouse receives all of the estate under the will; or
- The will maker made provision for the child that takes effect upon the death of the will maker, whether adequate or not.
Divorce or Annulment
A divorce or annulment that occurs after the execution of a will in North Carolina does not revoke the will. However, the divorce or annulment does revoke all provisions in the will in favor of the spouse from whom the will maker was divorced, unless otherwise specifically provided in the will.
Revival of Revoked Wills
The general rule in North Carolina is that once a will is revoked it is considered to be legally dead and cannot be revived. However, the North Carolina G.S. layout four exceptions for revival of a revoked will.
- Re-executing the revoked will with the required testamentary formalities.
- Executing a new will in which the revoked will is incorporated by reference.
- Under the doctrine of republication by codicil, execution of a codicil that makes express reference to the revoked will.
- Where provisions of a will are revoked because of divorce or annulment, those provisions are revived by the will maker’s remarriage to the former spouse.
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