Stroke, Paralysis Do Not Prevent Revocation of Will


Many court cases deal with the level of capacity required to make a valid will. From Maryland now comes a case dealing with the capacity to revoke an existing will.

Doris and Max Showe married in 1978. Both had been married before; Doris had one son (William) and Max had two daughters (Denise and Debra). In 1992, Doris and Max signed wills with identical provisions. Each left everything to the other, and on the second death the remaining estate was to be divided, with half going to William and half split between Denise and Debra.

In July, 1994, Doris suffered a stroke. She was paralyzed on the right side, and was unable to care for herself. She was also left unable to speak, except for a few words at a time, and did not recognize long-time friends and acquaintances.

Max died about a year after Doris’ stroke. Doris’ son William went to the safe deposit box and removed both Max’ and Doris’ wills. He visited his mother, with her will in hand, and read it to her; he later testified that she “indicated that that was not what she wanted.” He told her that if she revoked the will, all her estate (including what she had inherited from Max) would come to him.

William then consulted a lawyer in his home state of Pennsylvania. That lawyer told him to prepare a simple form revoking the will and have his mother sign it in front of two witnesses, and that the will could then be physically destroyed.

In September, three months after Max’ death, William prepared a one-sentence form for his mother to sign. In its entirety, it read: “I, Doris Showe, as of 10 Sept 1995 declare this will dated 7 Feb 1992 and all preceding wills to be invalid.” Doris signed the revocation with what the court later described as “a handwritten mark that resembles the letter ‘x’ or the letter ‘t,’ tilted at a 60 degree angle to the left.” Two daycare workers witnessed the signature. Then William physically tore the old will in half.

When Doris died eight months later, William filed for probate saying that she had not left any will. Her two stepdaughters objected, and attempted to introduce a copy of her 1992 will leaving half her estate to them. The legal question then became whether Doris Showe had understood the effect of her signature on the form prepared by her son.

At trial one of the witnesses to the revocation testified that Mrs. Showe understood what was said to her, and that she could communicate her wishes with simple “yes” and “no” answers. Another caretaker, however, testified that her mental capacity had been affected by the stroke, and that she could not have understood the revocation of her will. Furthermore, Maryland law requires more than the document Mrs. Showe signed; in order to revoke a will in Maryland, the testator must burn, cancel, tear or obliterate the will, or have someone do it for them while in their presence. In other words, the act of William tearing up the will, allegedly at his mother’s direction, turned out to be more important than the document he had her sign.

After review of the evidence, the Maryland Court of Special Appeals decided that William had shown that his mother was competent to revoke her will. Furthermore, the court ruled that, despite the obvious self-interest, his testimony about her instruction to tear the will was believable. Mrs. Showe died without a will, and her entire estate passed to her son William. Oliver v. Hays, 5/4/98.

In Arizona the result would likely be the same. Like Maryland, Arizona does not permit a revocation to be by a separate writing (unless it is part of a new will). It is not clear whether it requires as much capacity to revoke a will as to execute a new one, although Mrs. Showe’s case might suggest that a lower level of capacity may be enough for a revocation.

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