Estates and Trusts Article § 4-105 provides that a will, or any part of a will, may be revoked only under four circumstances:
(1) Subsequent will. — By provision in a subsequent, validly executed will which (i) revokes any prior will or part of it either expressly or by necessary implication, or (ii) expressly republishes an earlier will that had been revoked by an intermediate will but is still in existence;
(2) Destruction. — By burning, cancelling, tearing, or obliterating the same, by the testator himself, or by some other person in his presence and by his express direction and consent;
(3) Subsequent marriage and issue. — By the subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by him, provided such child or his descendant survives the testator; and all wills executed prior to such marriage shall be revoked; or
(4) Divorce or annulment. — By an absolute divorce of a testator and his spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator’s will; and all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.
Section 4-106 provides: “If a testator makes a subsequent will intended to revoke a prior will, the destruction or other revocation of the subsequent will does not revive the prior will unless the will is still in existence and is republished with the same formalities as are required for the execution of a will [in accordance with § 4-102].” The revocation of a will, in contrast to the invalidation of a will due to incompetency or some other factor, does not revive an earlier will. Under limited circumstances, however, the doctrine of dependent relative revocation may resurrect the earlier will. Arrowsmith v. Mercantile-Safe Deposit and Trust Co., 313 Md. 334, 545 A.2d 674 (1988) (holding that the doctrine of dependent relative revocation did not apply).
In Veditz v. Athey, 239 Md. 435, 212 A.2d 115 (1965) the court demonstrated that a will may be revoked by a subsequent will or codicil. In that case, the testatrix gave her niece one-half of her interest in a piece of residential real property after execution of her will. In the second codicil to her will she bequeathed her remaining interest in the property to the niece. Later, in a third codicil, the testatrix revoked and replaced the specific article bequesting the remaining interest in the property. In the third codicil, the testatrix substituted language bequesting personal property contained in the property to her niece but leaving no instructions regarding the property itself. At trial, the niece presented testimony of her aunt’s intentions and argued for a construction of the will and codicils that would have completed the gift of the property to her; however, the niece’s efforts were to no avail. The court enforced the specific language of the third codicil which revoked and replaced the language of a second codicil. The niece ultimately received one-half of the residential property and the remainder beneficiaries the other half. The court, noting that the language had been drafted by an experienced attorney, stated:
“The law assumes that when a testator expressly revokes a clause in his will…he is doing what his words clearly imply – revoking the clause in its entirety, as it stood, with all the intermediate changes, at the time of revocation. To hold otherwise would impose a new and unnecessary burden in the drafting of wills and codicils and might well cast doubt upon testamentary documents which death has made final.”
Id. at 444.
Maryland law permits a will to be revoked by the testator through the personal act(s) of burning, cancellation, tearing or obliteration. Md. Code Ann., Est. & Trusts § 4-105(2). “The absence of a will raises a presumption that it has been destroyed by the testator animo revocandi, but the presumption is rebuttable.” Tilghman v. Bounds, 214 Md. 533, 537-8, 136 A.2d 226, 228 (1957). In Tilghman v. Bounds, a carbon copy of the will was allowed to be admitted because the original will could not be found and there was evidence that the original will was not in the hands of the testatrix at the time of her death. Indeed, in Tilghman, the original will was traced to the possession of heirs who would not have benefited from the will. Under such circumstances, the court found that the presumption of revocation was rebutted.
In circumstances where the will is presumably marked up by the testator a determination must be made as to whether the changes were done with an intention to revoke the will: “Revocation requires an act, sufficient under the provisions of the Code, and an intention to revoke, and while, where the intention is clear, slight acts of cancellation or obliteration may be sufficient to constitute a revocation, an intention to revoke cannot be presumed from acts that are in themselves incomplete and inconclusive, and that are as readily accounted for in some other way.” Safe Deposit and Trust Company of Baltimore v. Thom, 117 Md. 154, 163, 83 A. 45, 47 (1912). In Thom, the testatrix requested that her original will be mailed to her by her attorney who had previously retained possession. The will was found at her death with instructions to the attorney in an envelope; these instructions were sealed and addressed to the attorney. Parts of the instructions were rubbed out and some of the letters were retraced by lead pencil, but no part was entirely obliterated or rendered illegible. She had also made notations on the will directly. The court was thus tasked to determine whether her markings constituted a revocation. The Orphans’ Court found that the will had been canceled and revoked by the deceased and refused probate of the will. On appeal, the Court of Appeals reversed.
The Court of Appeals held that if an intention to revoke a will is not fully consummated such intentions do not constitute a revocation. Under the facts of Thom, the court found that the deceased “had no idea of dying intestate.” Id. at 166. The testatrix had no intention of revoking her will by the markings and erasures; rather, she intended that those markings and erasures would assist her attorney in preparing a new, modified will reflecting her modified wishes. She had not intended to revoke the old will by her acts. “Here all that the evidence shows is that what was done must have been done for the sole purpose of indicating to the attorney of the deceased that the item slightly rubbed was not to be included in the new will.” Id, at 168. This is distinct from an intention to revoke. Thom also demonstrates that a testator may revoke a clause in the will without invalidating the remaining clauses provided that the revision would not change the character of the other provisions.
A divorce will invalidates provisions to the former spouse. Md. Code Ann., Est. & Trusts § 4-105(4). This rule only applies to probate dispositions. Id. In a number of Maryland cases, the court was forced to determine the effect of a divorce and/or a separation agreement on non-probate beneficiary designations. These cases arise where the decedent is divorced from his or her spouse yet fails to change the beneficiary designations. Such cases involve an interpretation of the divorce decree and/or separation agreement because § 4-105 does not apply in non-probate transactions. In Cassiday v. Cassiday, 256 Md. 5, 259 A.2d 299 (1969), the decedent failed to change the beneficiary designation from his former wife. The separation agreement did not specifically address insurance policies but provided: “The wife hereby covenants and agrees that all the personal property now in the possession of the husband shall be his sole and separate property.” Id. at 7. In a fight between the former wife and the widow over the proceeds of the insurance policies, the widow argued that the former wife lost her rights to be named as beneficiary as a result of this personal property clause. The Court of Appeals disagreed and held that the separation agreement did not extinguish the former wife’s rights as a named beneficiary: “[U]nquestionably he could have changed the beneficiary…if he had so desired and as he did in the other life insurance policies. There is nothing in the separation agreement which precluded [the former spouse] from receiving money…as a beneficiary, designated by the husband, in his life insurance policies.” Id. at 12.
In PaineWebber, Inc. v. East, 363 Md. 408, 768 A.2d 1029 (2001), the court reviewed a separation agreement which included a “pension waiver” whereby the former spouse gave up her right to “participate as a payee or beneficiary regarding any interests the other [spouse] may have…in any pension plan, profit-sharing plan, or any form of retirement or deferred income plan …” Id. at 415. Based on the beneficiary designation, the court held that the pension waiver language was not sufficient to preclude the former spouse from being the recipient of the decedent’s IRA. The court found that the pension waiver reserved the decedent’s right to change the beneficiary prior to his death. The Court of Appeals upheld the Court of Special Appeals’ argument that a waiver of the IRA could not be effectuated by the pension waiver because the ex-spouse had no property interest in the IRA at the time the waiver was executed. Rather, at the time of execution, the ex-spouse had an expectancy in the IRA; the ex-spouse had hope of property interest in the IRA but did not have an actually property interest. This holding suggests that if the decedent had not wished for his ex-wife to receive the IRA he should have changed the beneficiary designation during lifetime.
In certain circumstances federal law may change the result a case of this nature. For example, applicable ERISA provisions trump state laws which affect a spouse’s rights in the pension plan. Boggs v. Boggs, 520 U.S. 833 (1997). Thus, in a situation where a former spouse remains as the designated beneficiary of an ERISA plan but the decedent had remarried, federal law may dictate that the new spouse receive the benefit regardless of the designation.
Uniform Probate Code § 2-804 expands the revocation by divorce to non-probate dispositions. This expansion treats divorce as reversing any revocable designation to the former spouse made prior to the divorce on any instrument under which the divorced individual, at the time of the divorce or annulment, was alone empowered by law or under the governing instrument to change the designation. “The revisions expand the section to cover ‘will substitutes’ such as revocable inter vivos trusts, life insurance and retirement-plan beneficiary designations, transfer-on-death accounts, and other revocable dispositions to the former spouse that the divorced individual established before the divorce (or annulment).” Id. at cmt. The estates and trusts lawyers of the Maryland State Bar Association have periodically attempted to expand divorce-related revocation provisions to include certain non-probate transfers. For example, in the 2001 General Assembly, MSBA lobbied for House Bill 1111, providing that divorce would revoke provisions relating to the former spouse for a revocable trust used as a will substitute. The General Assembly failed to enact the Bill.
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