How Is a Beneficiary Removed from a Will?

By Andrine Redsteer

When a person is named in a will, he is called a beneficiary. Heirs, on the other hand, are individuals who stand to inherit from a relative who failed to make a will; thus, leaving inheritance division to the laws of intestate succession. Testators, or will makers, may remove beneficiaries from wills by executing specific documents that effectively disinherit the beneficiary -- usually by express terms.

Will Formalities

When a testator seeks to remove a beneficiary from his will, he must follow all the same formalities required of him when he originally made the will. This means the testator must know exactly what he is doing, commonly referred to as having "testamentary capacity." He not only must understand the full effect of removing a beneficiary from his will, but also the importance of such a removal. Testamentary capacity involves the testator recognizing the extent of his "bounty," or property, and the significance of devising property to family members and friends.

Revoking a Devise by Executing a New Will

A testator may remove a beneficiary from a will by executing a new will and including a provision that unequivocally expresses the intent to revoke the prior will. The testator can also include a provision that specifically names the beneficiary he intends to disinherit. For example, a testator's new will may state, "I hereby omit my son, Jimmy, from this last will and testament." This language is important because a disinherited beneficiary may challenge a will if an express disinheritance provision is not included. In such a case, the disinherited beneficiary may argue the testator simply forgot to include him. When a testator incorporates terms that unequivocally disinherit a named beneficiary, it leaves little doubt as to his intentions.

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Making a Codicil

A testator may remove a beneficiary from a will by executing a subsequent codicil. A codicil is essentially an amendment -- requiring the same formalities as a will, including capacity, witnesses and signatures -- used to effect minor changes to a will, such as disinheriting a beneficiary. However, if a testator wishes to make several fundamental changes, it is customary to execute an entirely new will that expressly revokes the prior will.

Striking a Provision

Although testators have been known to strike out -- or draw lines through -- offending clauses, it is generally advisable to either execute a new will or execute a codicil. Because the act of drawing lines through offending provisions can lead to a will that is difficult to decipher, it is generally not recommended.

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What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?
 

References

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Montana Law Governing Last Wills & Testaments

Montana's Uniform Probate Code governs wills throughout the state. Like other states, Montana mandates specific formalities that must be adhered to during the making of a will. Formalities are important procedures that give wills legal effect; without them, a will maker — called a "testator" — could make a will that is contrary to his actual intent.

What if a Beneficiary Steals From the Estate?

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