M Civ JI 170.31 Will Contests: Revocation of Will by Physical Means

A [ will / part of a will ] may be revoked by being [ burned / torn / canceled / obliterated / destroyed ] by [ a decedent / another person in decedent’s conscious presence and by [ his / her ] direction ] with the intent and for the purpose of revoking [ the will / any part of the will ].

*(Canceling can include a striking out, as drawing one or more lines through, crossing out or otherwise marking out.)

*(Obliteration can include a blotting out and erasing or a smudging.)

*(There is no requirement as to what amount or in what manner the [ cancellation / obliteration ] is accomplished as long as it is done with the decedent’s intention of revoking [ the will / any part of the will ].)

*(A [ burn / or / tear / or / cancellation ] can be a revocation even if it does not touch any of the words on the will.)

The contestant has the burden of proving that [ the will / a part of the will ] was revoked by being [ burned / torn / canceled / obliterated / destroyed ] by [ the decedent / another person in the decedent’s conscious presence and by [ his / her ] direction ] with the intent and for the purpose of revoking [ the will / any part of the will ].

Note on Use

*These paragraphs should be read to the jury only if they are applicable to the case.

The definitions of “canceling” and “obliteration” are not intended to be exclusive.

Comment

MCL 700.2507(1)(b).

Revocation can be as to the whole will or to a part of the will. MCL 700.2507(1)(b); In re Fox’s Estate, 192 Mich 699; 159 NW 332 (1916).

Cancellation includes a striking out, such as the drawing of one or more lines through, or the crossing out of, the will provisions. Obliteration includes a blotting out, an erasure, a smudging, a total lining out of the will provision. Anno: Effect of testator’s attempted physical alteration of will after execution, 62 ALR 1367, p 1383. It does not matter whether the cancellation is done by pencil or pen. Fox’s Estate. One line as well as many could be a cancellation. Id.; In re Houghten’s Estate, 310 Mich 613; 17 NW2d 774 (1945). Cancellation can also include cutting out of the testator and witnesses signatures. Anno: Effect of testator’s attempted physical alteration of will after execution, 24 ALR2d 514, §10.

The new Michigan statute adds the following provision not found in the predecessor statute: “A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touches any of the words on the will.” MCL 700.2507(1)(b). See the comment to §2-507 of the Uniform Probate Code from which this sentence derives.

The new statute requires the “conscious presence” of the testator when another person performs the act of revocation for the testator, whereas the prior statute (MCL 700.124(1)) used the word “presence.” “Conscious presence” focuses more on the testator’s consciousness of what is going on rather than physical proximity or actual viewing. See Michigan cases in the Comment to M Civ JI 170.11 Will Contests: Will Signed by Another for Decedent.

History

M Civ JI 170.31 was added January 1984. Amended March 2001.​