What Happens When There Is an Inconsistency in a Will?

by Beverly Bird

Life can sometimes get in the way of an immaculate estate plan. It can move on for some significant time after you write your will. By the time you die, changes may have occurred that create inconsistencies in its terms. In most states, the court will try to infer your true intentions from other circumstances and make a ruling accordingly. Some inconsistencies can override the terms of your will completely.

Assumed Revocation

In most states, the law allows a testator -- the individual making a will -- to revoke it without taking any sort of legal action. He can tear it up, burn it, or even simply state his intention to another individual. Ideally, he will also write a new will, stating that he has revoked all others he wrote in the past. If he neglects to include this statement in his subsequent will, and if he does not literally destroy the first document, the second may contain provisions that are completely at odds with and inconsistent with the terms of the first. If heirs find both, this almost invariably invites a will contest. One of the wills may be very favorable to a beneficiary, while the other is not. In most cases, the disgruntled beneficiary will file a will challenge with the court, asking a judge to throw out the negative will and to probate the positive one. The judge will have to decide which one most accurately reflects the decedent's intentions.

Nullity of Bequests

When a will bequeaths the same item of property to two beneficiaries, an inconsistency of this nature usually nullifies both bequests. Neither individual receives the property. It usually reverts back to the estate. If the will includes any general bequests, such as that half the decedent’s estate goes to his spouse and the other half goes to his children, the property typically adds to the value of the overall estate. However, if the will included only specific bequests, leaving individual items of property to designated beneficiaries, the dual bequest would usually pass to the decedent’s closest living relative according to his state’s laws for those who die without leaving wills.

Superseding Contract Law

Wills cannot bequeath assets that pass to a named beneficiary by contract, such as life insurance death benefits or transfer-on-death accounts. Inconsistencies can arise if the decedent includes these assets in his will anyway. If his will leaves an insurance policy's death benefits to his spouse, but the policy names his brother as its beneficiary, the terms of the insurance contract usually supersede the will. Many financial institutions include language in their contracts specifically indemnifying them from lawsuits when they pay the beneficiary named on the account rather than honor the terms of a decedent's will.

Conflicts With Trusts

A similar inconsistency might occur when a decedent leaves both a trust and a will. If he transferred an item of property to his trust, leaving it to one beneficiary, and if he then leaves the same property to another beneficiary in his will, the terms of the trust usually prevail. When he transferred the asset to his trust, he named the trust as its new owner. The will can’t bequeath something the decedent no longer owned.

Ademption

A process called ademption also causes inconsistencies with wills, and it's not an uncommon problem when a decedent makes his will many years before his death. Ademption means that an item of property he bequeathed no longer exists. He might have sold it, or he may have given it away to another individual during his lifetime. In this case, the beneficiary named in his will receives nothing.