The first sentence of most attorney-drafted wills states that all previous wills are revoked. In addition, I advise my clients to destroy their old will. It doesn't really matter how you do it. You can tear it up, burn it, shred it, or write "I revoke this will" on each page and sign it. The point is that you do some physical at to indicate that you have revoked your old will.  You do not need to wait until your new will is drafted.  If you would prefer Texas intestacy to the terms of your old will, destroy the old will immediately.  Texas is replete with cases where a will is accepted despite convincing testimony that the testator was in the process of replacing it.

      The purpose of destorying your will is, of course, to prevent someone from probating your old will in Court.  You should also not give out, or make, copies of your will. This is because if an original will cannot be located, a copy can be probated, along with testimony of what happened to the original, and a statement that the will was not, to the applicant's knowledge, revoked. Once a copy of your will leaves your possession, you can never again be sure that all the copies have been destroyed. Even if you ask your disinherited child for the copy of your old will back, and he gives it to you, he may have made additional copies in the meanwhile. There is no way to tell.

    If you have made copies of an old will, you want to destroy not only your original prior will, but any copies that you are aware of. In addition, you should advise the attorney who drafted your old will that you have made a new one.

   Similarly, you should never sign multiple original wills. If a will cannot be located, the presumption is that the testator destroyed the will, intending to revoke it, which can make the will which is located susceptible to challenge.

Just as a missing original will raises the presumption that it was destroyed by the testator, an undestroyed original will, raises the obvious presumption that it was not revoked. If you have more than one undestroyed will, you run the risk not only that someone will deliberately probate a will which you have revoked, but the risk that they will do so accidentally, or even be forced into probating it.  It is especially important to destroy your old will where you have made dramatic changes to who inherits, or where you would prefer Texas intestacy to operate over the terms of your prior will. This is because a person who finds a will of a deceased person has an obligation to submit it to the Court, and if they do not do so, they can be called into Court to show why the will has not been submitted, and then can be ordered jailed until the will is submitted.

   I have had multiple cases where someone told me that they had found an old will, but knew a more recent will had been written, but had been unable to find it. If an undestroyed, original will is in existence, it is difficult to persuade the Court that it was revoked.

If you would like to speak to an attorney about challenging a probated will, or replacing an existing will, please contact my office at 281-351-7897 for an appointment in Tomball or The Woodlands. Conroe clients may contact us at 936-271-2671.

Web Resources

FindLaw
Thomson West
U.S. Courts
Westlaw
United States Chamber of Commerce
FirstGov
Library of Congress
White House
Internal Revenue Service
Yahoo!Legal Blog Directory