Should You Destroy Previous Wills?
A previous article discussed the subject of maintaining your original Will in a safe location. A related question is whether you should destroy prior versions of your Will.
There are at least two very good reasons for destroying prior versions of your Will. First, beneficiaries who received a greater bequest under a prior Will might see your prior Will and have their feelings unnecessarily hurt. Or worse, they may decide to challenge the later Will.
The second reason for destroying prior Wills is to eliminate potential confusion. One decedent whose Estate I represented left numerous holographic wills, some of which did not have a date. In addition to uncertainty over which Will had been executed last, there was some concern that he lacked testamentary capacity when he prepared some of his Wills. Beneficiaries who would have fared better under prior Wills were active participants in protracted litigation regarding his Estate. If prior versions of the Will had been destroyed, the beneficiaries who were eliminated by the latest Will would not have known that they had been named in previous Wills.
There is one circumstance where it is advisable to maintain the most recent version of your Will. If there is any potential that one or more persons will challenge your Will, maintenance of the prior Will may be helpful, especially if the challenger fared no better under the prior version of your Will. I have been involved in two lawsuits involving disinherited children where the prior Will was useful. The disinherited children claimed that their parent either lacked testamentary capacity, or was unduly influenced by their siblings to prepare a Will that disinherited the child. In both lawsuits, the decedent had instructed their attorney to hold on to the prior version of their Will. In both cases, the decedent had made a conscious decision to disinherit a child due to their disappointment with the child. These decisions had been made when there was no question about the parent’s legal capacity. The maintenance of the prior Will made it easier to ward off the challenge by the disappointed child. If the original of the prior Will had not been maintained, there would have been a strong presumption that the prior Will had been destroyed or revoked. Fortunately, the original of the prior Will was produced. Because the prior Will also disinherited the child, the court did not even need to consider the disinherited child’s claim.
In summary, if there is any potential of a Will challenge, you should consider instructing your estate planning attorney or another trusted advisor to maintain the original of your prior Will. You should give them instructions to produce the Will only in the event of a Will challenge. If there is no potential for a Will challenge, you should destroy prior Wills in order to avoid potential confusion and hurt feelings.