A will is a legal document that enables a testator to direct the distribution of an estate’s assets after the testator’s death. In some cases, however, a person might write a second or even a third will due to changes in life circumstances. If a testator dies with more than one existing will, confusion can arise as to which will should be executed.
When a New Will Revokes an Old Will
A new will revokes and takes the place of a previous will if:
- The new will clearly states that it revokes the previous will(s).
- The new will contradicts the previous will(s).
- The testator destroys all or part of the previous will(s) or directs someone else to do so.
If the testator doesn’t destroy the old will or state in the new will that the old will is revoked, the court must decide if the new will was intended to replace or to supplement the previous one(s). South Dakota law considers the old will revoked and replaced if the new will includes instructions for distributing all of the estate’s assets.
If the new will disposes of only a part of the estate, the law considers the new will a supplement to the old will, and both wills should be followed by the estate’s personal representative (executor). Where there is inconsistency or contradiction regarding a particular asset, the new will takes precedence and must be followed unless there’s clear and convincing evidence that this was not the testator’s intention.
Revocation by Divorce
If a testator is divorced from or not legally married to a “spouse” named in the will, any language that leaves assets to that spouse or names the spouse as personal representative of the estate will be revoked by law unless:
- There’s clear language in the will stating that divorce shouldn’t change the terms of the will.
- The testator remarries a previously divorced spouse before death.
Let Us Help You Settle Your Loved One's Estate
Clearly, the existence of two wills at the time of a testator’s death creates a confusing and contentious legal situation in which the beneficiaries and the personal representative of the estate might disagree and sue one another. If you’re the personal representative or a beneficiary in such a situation, an experienced wills and estates attorney can help you to distribute assets properly or claim assets that your deceased loved one intended you to have. Contact us online or call us at 605-306-4100 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa.