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Keeping Your Old Original Will May Not be a Good Idea

If you have two original Wills, what happens when you only destroy the newer one? Does the old one become effective again? Is it revived?

All Wills have a sentence stating that this new Will revokes and replaces all old Wills. But what does that really mean? In the Estate of John Tyler McKelvey, the Tennessee Court of Appeals addressed this question. John McKelvey executed Wills in 2005 and 2011. When he died in 2016, no one could find the original 2011 Will, but they did find the original 2005 Will in the bottom of his filing cabinet underneath some papers. Mr. McKelvey’s children testified that he kept his important papers in his safe and not his filing cabinet. There was testimony that Mr. McKelvey was dissatisfied with the 2005 Will and that he intended to make a new Will after the 2011 Will. Witnesses also testified that they told Mr. McKelvey to destroy the 2005 Will. Because the original 2011 Will was not found and there was no evidence it was misplaced, the trial court applied the presumption that Mr. McKelvey destroyed the original 2011 Will.

A later Will containing a clause revoking all prior Wills does not always render an earlier will null and void as the terms of a Will are not enforceable until the person dies. Such a clause is irrelevant to whether the revocation of a later Will automatically revives an earlier one. To revive the earlier Will, the person seeking revival must demonstrate by a preponderance of the evidence that the decedent intended to revive the earlier will when revoking the later one. Keeping an original earlier Will creates a “bare presumption” of the intent to revive it. But, this “bare presumption” disappears when the decedent intended to make a third Will.

In this case, the appellate court held that Mr. McKelvey revived the 2005 Will. He kept the original 2005 Will. There was no evidence he took steps to prepare a Will after 2011. The testimony at trial was clear that Mr. McKelvey’s desired division of his estate after his death was consistent with the 2005 Will and inconsistent with intestate distribution.

There are two lessons to learn from this case: First, if you like your Will, make sure you keep the original Will in a safe place and tell your personal representative where it is. At Fowler & Fowler, we provide our clients with a letter when we give them their original Will. In that letter we confirm where the Will is being kept. Second, if you prepare a new Will, destroy your old Will. Get rid of it. Throw it away. Shred it. Do something with it other than keeping it as this case would have been different if Mr. McKelvey did not keep the original 2005 Will.

In re Estate of John Tyler McKelvey http://www.tncourts.gov/sites/default/files/in_re_estate_of_john_tyler_mckelveyopn.pdf

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