Testator Partially Revokes Will By Handwriting On Original

MAY 31, 1999 VOLUME 6, NUMBER 48

J.B. Warren, Jr. had two children, Paul Warren and Anita W. LeCornu. After the death of his wife, he prepared a will leaving one piece of real estate to his son, another to his daughter, and all of his stocks, bonds and financial accounts to his son.

Mr. Warren suffered a stroke in 1987, and his ability to handle his own finances began to slide. He turned to a niece, Becky Taliaferro, to take care of his business matters. She later testified that she reviewed his will in 1991, and that there was a line drawn on the document itself. She did not investigate further because, she said, she felt like she was invading Mr. Warren’s privacy.

When Mr. Warren died in 1997, the original will was found in his papers. Someone had underlined the provision leaving all his stocks and bonds to his son, had enclosed it in double parentheses, and had written the word “void” and the initials “J.B.Jr.” above that section.

Several questions were immediately raised by the markings on Mr. Warren’s will. Were they made by Mr. Warren, or by someone else? If they were someone else’s markings, were they made at Mr. Warren’s direction? If they were made by Mr. Warren, did they have the effect of revoking all of his will, or any part of it?

Mr. Warren’s daughter insisted that she recognized the initials as her father’s, even though she had only seen him once in the six years before his death. Ms. Taliaferro, the niece handling his affairs, agreed that the initials were Mr. Warren’s. Paul Warren, Mr. Warren’s son, claimed that the writing and initials did not look like his father’s. The court, after considering the evidence, found that the markings were made by Mr. Warren.

Tennessee law, like that of most states, provides that a will can be revoked in its entirety or in parts. The revocation can be made by the will “being burned, torn, canceled obliterated or destroyed.” The question then became whether crossing out a paragraph and marking “void” is an effective revocation of that paragraph of a will. The Tennessee Court of Appeals ruled that Mr. Warren’s markings did revoke that provision of his will, leaving all of his stocks, bonds and securities to his two children equally. Estate of J.B. Warren, April 6, 1999.

Arizona law is similar to Tennessee’s. In Arizona, a will can be revoked in whole or in part, just as in Mr. Warren’s case. The law provides that revocation can be accomplished by any “revocatory act” upon the will itself–in other words, “by burning, tearing, canceling, obliterating or destroying the will or any part of it.” Mr. Warren’s marks would have been just as effective in Arizona as they were in Tennessee.

Even though Mr. Warren accomplished what we assume was his goal, there remain many questions. Did he really intend to leave all his assets to both of his children, notwithstanding the fact that he apparently was substantially estranged from his daughter? Did he perhaps intend to benefit others, maybe including his niece, or to leave his real estate in equal shares as well? Is it possible that someone else persuaded him to mark his will, or even marked it for him and forged his initials? All of these questions would be easier to answer if Mr. Warren had consulted with his attorney, explained his goals and had his will properly amended. Of course, his attorney might have simply prepared a new will for him–one that would have expressly revoked his old will.

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