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VIC How to Legally Invalidate My Will?

Discussion in 'Wills and Estate Planning Law Forum' started by ToastedFruit, 27 September 2015.

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  1. ToastedFruit

    ToastedFruit Active Member

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    To make an extremely long story short. I desired to thoroughly destroy my will. So I went to my lawyer and communicated this. He responded by handing me my will and I think he might have communicated that if I wanted to destroy it then I could take it and shred it or whatever. But because I wasn’t clear on the details of what he said I went back after burning my will to ash to just make sure that there wasn’t anything else that I needed to do. So I said “OK I have now burnt it to a crisp. So is that all I need to do to invalidate my will?”

    Then my lawyer said “No it’s not invalidated.” He seemed to be saying that I had destroyed it but I hadn’t invalidated it.

    Trying to figure out if I had misused the word I looked up “Invalidate” in the dictionary and it seemed to describe exactly what I meant.

    I wanted to remove the document itself and any legal power it holds from all known reality except from the past of course because that would involve time travel. Anyway being told that it wasn’t invalidated while also being told that I did destroy the will has made me confused about its status.

    I’m sure some people are probably thinking that well obviously if you’ve destroyed all the paperwork then it doesn’t matter what word is used because the paperwork doesn’t physically exist anymore. However this doesn’t apply too strongly in the modern day because apparently there are actually records on digital file, which apparently my lawyer is obligated to keep for give or take seven years.

    Looking up invalidate in a legal context with Google, I noticed a pattern. It only seemed to be used in regards to removing the legal power of someone else's will but never the will of the person who it actually belongs to. Is that how I misused it? Or is there something I've overlooked regarding destroying the will?
     
  2. ToastedFruit

    ToastedFruit Active Member

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    As I have not yet received a response I wonder if it's because people are thinking: "I have no idea why you would be told (No) when asking if you had invalidated the will. Or if people are thinking the opposite which would be: "It's so obvious why destroying the physical will doesn't count as invalidating it that I can't even dignify this question with a response."
     
  3. Sophea

    Sophea Well-Known Member

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    Hi @ToastedFruit,

    You can revoke a will by physical destruction: deliberately burning, ripping up, or writing all over it so that it becomes unintelligable will do the trick. Sounds like you have succeeded in doing this. As such your will will be treated as being totally revoked and of no force or effect.

    Bear in mind that if a will is only partially destroyed so that only part of the text or a particular provision is crossed out, it may be treated as only revoked as far as the destroyed portion. Are you confident that there are no other copies of the will in existence? Hard copy or electronic? Its possible that after you die someone may try to establish that such a copy was your current will at the date of your death.

    You can also revoke a will by executing a new will. This will revoke a former will by implication, however generally new will also contain a revocation clause in which the testator revokes any and all prior wills.

    If you have revoked your will by destroying it or executing a document revoking it and you do not execute another will before you die, then your estate will be dealt with in accordance with the laws of intestacy.
     
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  4. ToastedFruit

    ToastedFruit Active Member

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    I appreciate you trying to help quite a bit. Upon reflection I'm 90% sure the lawyer did refer to it as being revoked but he would protest if I dared to suggest that it had been “Invalidated” like they were two different things. Is there a difference? I asked my lawyer that very directly but I didn’t even get any words out of him. I suspect it was knowledge without understanding.

    So I just have one little question. Which is essentially to repeat what I’ve already said in the paragraph above this. Did I misuse the word “Invalidated.” If the answer is yes then that would imply that it may have just been that.
     
  5. ToastedFruit

    ToastedFruit Active Member

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    I set what I am ninety percent sure was the only copy of my will on fire with the intention of destroying it. I then asked my lawyer just to be safe if there is anything else I was required to do. This is not what I am asking you. What followed is what troubles me. To the best of my recollection the conversation went like this.

    Me: "So have I invalidated my will."

    Lawyer: "No it is ridiculous to say that you have invalidated your will. You have revoked it but you haven't invalidated it."

    Me: "What's the difference?"

    I didn't receive a bad answer instead there just seemed to be a lot of head scratching. So was it wrong for me to say invalidated in that context? Because the lawyer seemed to be saying that it wasn't that I failed to destroy it. Instead the problem was that I didn't know how to use the English language properly. I'm not asking how to destroy a will I'm asking about the language in regards to the will. I see three possibilities. Either I was misusing the word "Invalidated" or my lawyer is a bit screwy. Or thirdly despite the lawyer saying to my face that the will had been revoked it somehow isn't...

    I had expected it to be a simple yes or no situation but instead I found myself in this weird “It’s revoked but it’s not invalidated” situation which just made my head spin. I think I could get some peace of mind if I knew what the dramatic difference was. I'm not normally into grammar but I don't like loose ends on important matters.

    This is similar to another recent post. However I don’t believe I phrase that is clearly as I could have. There didn't seem to be enough focus on the language and I would delete my old post if I could. I'm new here so feel free to let me know if that is possible.
     
  6. Tim W

    Tim W Lawyer

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    A will can be invalid of it is in some way technically deficient, such as (but not only) if it does not appoint an executor, or is not properly witnessed.

    Revocation is about the existence or not of a will at all.
    You revoke a will by making a new one - in the opening text of which you say you revoke all others and replace them with "this" one.

    So, the difference is.... "invalid" means inoperative, whereas as "revoked" means "no longer exists".
     
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  7. ToastedFruit

    ToastedFruit Active Member

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    @Tim W

    I guess that would kind of make sense in a way. Kind of like for the will to be invalid it would still have to exist. I hope that's what my lawyer meant. Thanks for the input.
     

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