The question speaks for itself: What happens when a newer will surfaces after probate has already started?
Can the will that is admitted to probate still be revoked?
Is this scenario really plausible or does it only happen in the movies?
Well, there is a basis in reality for most fiction, and this scenario certainly fits the bill.
If a testator is very active in his estate planning, he or she may have several versions of a will fully executed. The newer one always supplants the older version, provided of course the newer will is legally valid. Or at least that is what most people believe.
Legally, however, especially if a will has already been admitted to probate, the nuances of the discovery of a newer will are not so simple.
How California Treats Competing Wills
If a later will is discovered after an earlier version of a will has already been admitted to probate, courts do not automatically revoke the earlier will.
If there are two or more versions of a will, the courts are duty-bound to construe them together, if reasonably possible. This is more along the lines of viewing later version of a will as a codicil or an amendment to earlier will versions, rather than a complete replacement.
This is particularly true when there is no express or implied revocation of previous wills in the later-dated will version. If the testator did not indicate his intent to render previous wills void within the language of the newer will, then both will be considered valid – as long as they are duly authenticated. Any inconsistencies, especially if only minor ones, will be reconciled by the court as much as possible.
Revocation by the Testator
If, on the other hand, the newer will revoked previous versions of the will by the testator, then the court will proceed accordingly.
Under Probate Code §6120, such revocation can either be express or implied.
There is express revocation if there is language expressly revoking any and all previous wills, in whole or in part, in the newer will. For instance:
- Total revocation: “I hereby revoke all prior wills and codicils executed by me, and I intend that this instrument shall operate as my sole and complete Last Will and Testament.“
- Revocation in part: “Except as expressly modified herein, I confirm my prior Will dated June 10, 2020; however, I revoke any provisions of that Will that are inconsistent with this instrument.”
In both instances, the intention of the testator to revoke is clear from the language in the will.
Implied revocation, on the other hand, takes place when the substance of the two versions of a will are so irreconcilable that both cannot be construed together. In that instance, the newer version of the will prevails. This is referred to as revocation by inconsistency.
For example, if the testator, in an earlier will, indicated his intention to leave his entire estate to Child A, but in a later will decides to leave his entire estate to Child B, the conflict between the two versions is clear and cannot be reconciled.
By contrast, if the testator, in an earlier will, indicated that he wanted to leave his estate equally to his three children, and in a later will indicated his intention to leave $10,000 to niece. These two versions do not directly contradict each other, or cancel the other one out. Courts, in this instance, may decide to reconcile the two versions by directing the distribution of $10,000 to the niece, and the rest of the estate to be distributed equally to the three children.
Does the 120-day window to bring a will contest apply to the discovery of new wills?
In California, under Probate Code §8270, interested persons generally only have a window of 120 days after a will is admitted to probate within which they can contest a will. This is conditioned on two things: that they are not already party to a will contest, or they did not have notice of a will contest in time to have joined the contest.
But does this 120-day window apply if there was a newly discovered will?
It depends.
And this is where things get a bit technical. The relevant rules are set out in Probate Code §8226 as follows:
- If there is no will contest brought within the 120 days, then the will is conclusive
- If there is another will, however, the later will may still be admitted to probate, but separately. This means that it is not a contest of the previously admitted will, but an entirely separate probate of another will.
- If the proponent of the new will received notice of the earlier probate petition, they may seek probate of the new will only within the later of the following time periods:
- 120 days after the admission of the first will to probate, or
- 60 days after the proponent of the will first obtains knowledge of the will
- In other words, if the will was discovered after the 120-day window, the proponent of the new will has 60 days after the date they learned of the probated will in which they can seek the probate of another will
- If a new will is probated, the court will seek to reconcile the provisions of the two wills, but will not disturb distributions already made according to the earlier will
- If a person did not receive formal notice at all, they may petition to probate a newly discovered will any time before the entry of an order for final distribution.
On the other hand, under Probate Code §8270, if the interested person is a minor or was incapacitated at the time a will was admitted to probate, and they had no guardian or conservator, they can petition to revoke the probate of the will any time before entry of an order for final distribution
Final Distribution as a Hard Stop
This might make it seem as though the courts will entertain new wills any time as long as they are not precluded from doing so under the rules set out above.
This is not absolute, however. There is a hard stop. Once the order for final distribution is issued, and that order is entered, no further challenges to the will or to the probate proceedings may be made.
And this is true whether the person received no notice at all, or was a minor or was incompetent at the time. Once the order for final distribution is made, the order is deemed final.
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If you are dealing with a newly discovered will and a limited time period within which to act, it is important to seek the assistance of a probate attorney as soon as possible. We can help you assess the validity of the document, clarify your legal options, and pursue the appropriate remedies—particularly where probate has already commenced. Contact us today to schedule a consultation.