The Power to Revoke at Any Moment

/ March 17, 2016

A popular saying goes “bad planning on your part does not constitute an emergency on my part.”  Estate planners cannot rely on such platitudes.  It is our job to fix bad planning especially in emergency situations which often involve quickly revoking one or all prior estate planning documents.  This article provides guidance on revoking the three most commonly used estate planning documents: (1) will; (2) power of attorney; and (3) health care directive.

Revoking a Will

Will revocation is governed by Minnesota Statute §524.2-507(a)-(d).  A will may be revoked by either a writing or an act.  A testator may execute a new will that expressly revokes a prior will.  What if the subsequent will does not expressly revoke the prior instrument?  In that circumstance, the newly signed will revokes the older will only if it is inconsistent and the testator intended the subsequent will to be a replacement.  The testator’s intent to replace instead of supplement a prior will is presumed if the subsequent will makes a complete disposition of the decedent’s estate.  If not, then the subsequent will supplements the prior will instead of revoking it.

Alternatively, a testator or another person at the testator’s direction may perform a “revocatory act” on the will for the purpose of revoking it.  A “revocatory act” includes, burning, tearing, canceling, obliterating, or destroying the will or any part of it.  A will is considered revoked even if the burning, tearing, or cancelling touches any of the words actually written on the will.

In two very specific instances, a will is considered revoked either in whole or part by a change of circumstances.  The will of a decedent who is murdered by a devisee is not considered revoked in whole.  Instead, under Minnesota Statute §524.2-803, the estate of the decedent passes according to the will, but as though the killer predeceased the decedent.  Similarly, a will executed prior to the dissolution or annulment of a marriage, may be considered revoked only in part due to the change in circumstance.  Minnesota Statute §524.2-804 provides that the dissolution of marriage revokes any disposition, beneficiary designation, or appointment of property in the will made to a former spouse.  A dissolution of marriage also revokes the nomination of a former spouse to serve as a personal representative of the will.  Instead, the remaining provisions of the will are given effect as though the former spouse died immediately before the dissolution of marriage.

Revoking a Health Care Directive

Health care directives are governed by Minnesota Statutes chapter 145C and a principal who has the capacity to do so may revoke a health care directive.  A health care directive in whole or part may be revoked using one of four methods as detailed in Minnesota Statute 145C.09, subd. 1.  First, a principal may physically destroy the health care directive document itself by canceling, defacing, obliterating, burning or tearing it with the intent to revoke.  Second, a principal may execute a separate written and dated statement expressing the intent to revoke.  Third, the principal may verbally revoke a health care directive in the presence of two witnesses who do not need to be present at the same time.  Lastly, a health care directive may be revoked by executing a subsequent directive that is inconsistent with the prior instrument.

Revoking a Power of Attorney

Unlike a will or health care directive, a power of attorney may be revoked only by a written document signed by the principal as detailed in Minnesota Statute 523.11.  If someone other than the principal signs the revocation or, if the principal is only able to sign with a mark, then a notary public must acknowledge the signing.  It is important to note that under the statute, a conservator or guardian of the principal has the same power the principal would have to revoke the power of attorney.  For the revocation of a power of attorney to be effective as to any party (the attorney-in-fact or financial institution), that party must be given actual notice of the revocation, meaning that the party has to have received it.



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