Sometimes a situation arises where a person passes away with multiple Wills and it may be unclear which Will is valid. If there is uncertainty regarding which Will controls and the disposition of the estate varies significantly from one Will to another, the potential for a Will dispute or challenge increases dramatically. Therefore, it is useful to know how to effectively revoke a Will to ensure that there is no confusion about which Will controls upon your death.
In Hawaii, Hawaii Revised Statutes Section 560:2-507 details how a Will may be revoked, whether in whole or in part. The methods a person may use to revoke a Will are as follows:
Method #1: Execute a subsequent Will. Having the most recently executed Will state unequivocally that all prior Wills are revoked is probably the cleanest way of revoking a Will aside from shredding the original and copies of any prior Wills.
Method #2: Performing a physical, revocatory act. Hawaii Revised Statutes Section 560:2-507(a)(2) states that a person may perform an act with the intent and purpose of revoking the Will to effectuate the revocation. This "revocatory act" may include doing the following to the Will:
Method #3: Implied Revocation. If a subsequent Will fails to expressly revoke prior Wills, Hawaii Revised Statutes Section 560:2-507(b) states that the previous Will may still be revoked by way of inconsistency IF the person intended the subsequent Will to replace rather than supplement the prior Will.
According to Hawaii Revised Statutes Section 560:2-507(c), there is a presumption that a subsequent Will replaces a prior Will in its entirety if the latest Will makes a complete disposition of the estate. This presumption may be overcome by "clear and convincing evidence".
HOWEVER, if the subsequent Will did NOT dispose of the entire estate, then the presumption is reversed (Hawaii Revised Statutes Section 560:2-507(d)). As before, the presumption came be overcome by "clear and convincing" evidence. Courts are generally reluctant to consider a subsequent Will as a complete replacement of a prior Will if the subsequent Will does not dispose of the entire estate. In that instance, the court would likely treat the subsequent Will as a "codicil", which is a supplement to a prior Will. The subsequent Will would only replace the prior Will where there are inconsistencies and both Wills would be effective to the extent they are in agreement.
Most everyone knows that a Will is a legal document that gives instructions on what happens to your property after you pass away. However, what makes a Will a Will? Fundamentally, it boils down to the testator's intent, but proving intent is sometimes a tricky (and expensive) proposition. Fortunately, Hawaii law provides guidance in the form of elements that should be met if a document or writing is to be considered a Will. If these elements are fulfilled, the court should have an easier time determining the testator's intent and concluding that the document was the testator's Last Will and Testament. Of course, there are exceptions to these requirements, but generally speaking there are four basic elements that should be met:
Requirement #1: A person must be eighteen years or older and be of sound mind. There is no exception to this requirement. (Hawaii Revised Statutes Section 560:2-501)
Requirement #2: The Will must be in writing. (Hawaii Revised Statutes Section 560:2-502(a)(1))
Requirement #3: The Will must be signed by the testator OR by someone else in the testator's conscious presence and as directed by the testator. (Hawaii Revised Statutes Section 560:2-502(a)(2))
Requirement #4: The Will must be signed by at least two other individuals who witnessed the testator sign the Will OR the individuals must have witnessed the testator's acknowledgement of the signature or the acknowledgement of the Will. (Hawaii Revised Statutes Section 560:2-502(a)(3))
What if the testator failed to have two people witness the signing of the Will? Perhaps the testator only had one person serve as a witness. Well, Hawaii Revised Statutes Section 560:2-502(b) states that a Will is still valid as a "holographic will" if the signature and material portions of the Will are in the testator's handwriting. This is true even if no one witnesses the testator writing, signing or acknowledging the Will. For the portions of the Will that are not in the testator's handwriting, extrinsic evidence can be used to establish that it was intended to be part of the Will.
What if one or more of the requirements spelled out under Hawaii Revised Statutes Section 560:2-502(a) aren't met? Say a person just left a piece of paper stating "I leave all my property to Joe the Plumber." In that instance, Hawaii law provides a "catch-all" exception in the form of Hawaii Revised Statutes Section 560:2-503. Hawaii Revised Statutes Section 560:2-503 basically says that a document or writing will be treated as a Will if it can be proven, through clear and convincing evidence, that the decedent intended the document or writing to be a Will. This opens the door for people to bring whatever evidence they have and attempt to convince the court that a document or writing was intended to be a Will. While it may be comforting to know that this "catch-all" exception exists, you don't want to put your intended beneficiaries in that position or situation because such an endeavor would surely be an uphill battle and require additional time and attorneys' fees.
The stress and expense of having to prove that a document or writing is a person's Will can usually be avoided by completing what is a called a "self-proved will". In Hawaii, a "self-proved will" can reduce the time spent in probate by helping the court more easily conclude that the document presented is indeed the decedent's Will. The requirements for a "self-proved will" is outlined in Hawaii Revised Statutes Section 560:2-504(a). For a "self-proved will", all the requirements of Hawaii Revised Statutes Section 560:2-502(a) that were mentioned above should be met including these additional elements:
Requirement #5: The Will must be simultaneously executed, attested to and acknowledged by the testator in front of an officer authorized to administer oaths (such as a notary public).
Requirement #6: The witnesses must attest and acknowledge in the presence and hearing of the testator and before an officer authorized to administer oaths that they witnessed the testator (or someone directed by the testator) sign the Will.
Also, according to Hawaii Revised Statutes Section 560:2-504(b), an attested Will (which is a Will that has been properly witnessed) can be made a "self-proved will" after its execution by having the testator and witnesses sign affidavits in front of an officer authorized to administer oaths and attaching them to the Will.
As you can see, while it can be argued that a document or writing which falls short of the Hawaii statutory requirements for a Will is in fact a person's Will, there are simple steps that can be taken to help the court establish the validity of a Will and to avoid long, protracted delays in probating a Will.
So you have a new baby on the way or perhaps already have several little ones underfoot. There are a multitude of things that you're likely worrying about as new or recent parents and estate planning is probably not one of them. However, discussing and making a few key decisions on the outset can help protect your family and children's interests in the years to come.
Nominating a guardian and conservator via a Will: A guardian and conservator are necessary for minor children because they cannot legally make decisions for themselves or own property in their individual name. In the event a minor child becomes orphaned and no guardian and conservator has been nominated by the deceased parents, then it is possible that relatives (e.g. the child's maternal and paternal grandparents or uncles and aunties) may engage in a lengthy legal battle to decide who will be legally responsible for the child and control the child's inheritance. This can be avoided by having the parents nominate a guardian and conservator for their minor children through a Will. Hawaii law also allows parents to make a nomination via a "signed writing", but it is safer to nominate a guardian and conservator through a properly drafted and signed Will. However, if the minor child is at least 14 years old, the minor may nominate her own guardian and conservator. The court will strongly consider the minor child's preference and determine whether the child's nomination is the best interests of the child.
Choosing who will be a guardian and conservator for a child is a difficult decisions and can sometimes hurt the feelings of those who weren't selected. However, this isn't a valid reason to not take action. Even if new parents are not completely certain about their choices for a guardian and conservator, it is better to have those selections initially memorialized in a Will. Providing some guidance on the parents' preferences is better than having none at all, which is something that could lead to a Hawaii court making inappropriate appointments. Of course, circumstances change and parents may reconsider their selections, but they can always revise their Wills at a later date to reflect those changes.
Creating a Trust: At the very minimum, new parents should have Wills drafted that nominate a guardian and conservator for their minor children as discussed above. However, creating and funding a Trust will allow parents to exert greater control over how and when property will be distributed to their children. For example, the trust terms may state that the trustee should partial distributions to the child when he reaches 25 years of age, 30 years of age and 35 years of age. This is in contrast to the legal requirement that a custodian under the Hawaii Uniform Transfers to Minors Act or a court-appointed conservator relinquish control of the property when the child reaches either 18 or 21 years of age. And since a child may lack the maturity or money management skills to handle property at 18 or 21, a trust can leave the property in the hands of a capable trustee to be managed and also extend the distribution timeline.
Trusts become an even more important tool if the minor children have special needs or disabilities. A Trust can be used to ensure that a child will continue to receive public assistance and medical benefits and also provide proper management of any property or assets that they may receive.
Life insurance: Life insurance is a powerful estate planning tool that should not be overlooked by new parents. At the most basic level, life insurance proceeds can be used as income replacement in the event a working parent passes away. Stay-at-home parents should also purchase life insurance to help cover childcare costs if they pass away. The insurance proceeds can help sustain a family as everyone recovers and plans for the future. However, in the best case scenario where there isn't a need for a death payout, life insurance can also be a great investment vehicle for a family since whole and universal life insurance policies can build cash value and earn interest over time. Parents of all ages and income levels should strongly consider purchasing life insurance policies that are within their individual budget and a good fit for their current family situations. Furthermore, naming a Trust as a beneficiary of a life insurance policy will allow the proceeds to be managed and distributed to your spouse and children according to your wishes.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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