2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 5 - Wills and Will Contracts and Custody and Deposit of Wills
§ 15-11-507. Revocation by Writing or by Act

1. A will or any part thereof is revoked:
   1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
   2. By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part of it or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph (b), “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will”, whether or not the burn, tear, or cancellation touched any of the words on the will.

2. If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
3. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
4. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

History. Source: L. 94: Entire part R&RE, p. 1000, § 3, effective July 1, 1995.

This section is similar to former § 15-11-507 as it existed prior to 1995.

Law reviews. For article, “Revocation of Wills -- How Accomplished and the Effect”, see 6 Dicta 7 (Oct. 1929). For article, “Colorado Legislature Grants Supreme Court Rule-Making Power”, see 16 Dicta 90 (1939). For article, “The Colorado View on Alteration of Testamentary Instruments”, see 16 Dicta 113 (1939). For article, “Revocation of Wills”, see 29 Rocky Mt. L. Rev. 492 (1957). For comment, “No Revocation of Prior Will by Revocation of Subsequent Revoking Will”, see 49 Den. L.J. 593 (1973). For article, “Partial Revocation of a Will by Revocatory Act”, see 40 Colo. Law. 79 (Nov. 2011).

Annotator's note. Since § 15-11-507 is similar to repealed § 153-5-3, C.R.S. 1963, § 152-5-4, CRS 53, CSA, C. 176, § 40, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section. Annotator's note. Since § 15-11-507 is similar to repealed § 153-5-3, C.R.S. 1963, § 152-5-4, CRS 53, CSA, C. 176, § 40, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Will can be revoked only in manner provided by statute, and the statutory provisions for revocation of wills must be strictly construed. Scheer v. First Nat'l Bank, 43 Colo. App. 296, 605 P.2d 65 (1979).

Will is revoked if, with intent to revoke, testator performs any one of the acts deemed sufficient by statute to effectuate a revocation. Tong v. Tong, 619 P.2d 91 (Colo. App. 1980).

Acts of revocation are presumed to be intentional absent contrary evidence. Tong v. Tong, 619 P.2d 91 (Colo. App. 1980).

Where there is no provision for partial revocation of will by cancellation, tearing, etc., the courts are not at liberty to introduce such a provision into the statute by construction. Scheer v. First Nat'l Bank, 43 Colo. App. 296, 605 P.2d 65 (1979).

Ineffective attempt to revoke portion of will. A portion of a will cannot be revoked subsequent to its execution by the testator's cancelling or obliterating that portion. Scheer v. First Nat'l Bank, 43 Colo. App. 296, 605 P.2d 65 (1979).

Revocation becomes complete and effective by a subsequent will at the time the revoking instrument is executed as provided in § 15-11-502 . Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

Will not revoked in accordance with this section must be held to be in existence. The original of a will must, of course, be produced if it is available, but if it is not, secondary evidence thereof may be adduced, and if it shall then appear that the will had not, prior to the testator's death, been revoked in accordance with this section, it must be held to be in existence. Estate of Eder, 94 Colo. 173 , 29 P.2d 631 (1934).

For the language of this section plainly indicates that only such testamentary instruments as have for their sole purpose the complete destruction or obliteration of a will fall within its provisions. That such is the purpose and intent of the section is manifest from the significant expressions used therein. It provides for the revocation of a will by burning, tearing, or obliterating. These terms must mean and refer to the utter annihilation and destruction of a will. Then the section follows with the further provision that a will may be revoked, that is set aside and annulled in toto, by some other will or codicil in writing declaring the same, that is declaring the total revocation and destruction thereof. Only instruments having such effect and purpose, and such effect and purpose alone, fall within the purview of this section. In re Carey's Estate, 56 Colo. 77 , 136 P. 1175 (1913); Freeman v. Hart, 61 Colo. 455 , 158 P. 305 (1916).

Under this section no former will can be revoked by a writing, unless the revoking writing is itself a will. Twilley v. Durkee, 72 Colo. 444 , 211 P. 668 (1922).

Instrument sufficient to revoke prior will. Generally, any instrument executed with the requisite statutory formalities for wills is sufficient to revoke a prior will. In re Estate of White, 39 Colo. App. 445, 566 P.2d 720 (1977).

A will which expressly revokes former wills must be signed by the testator in the presence of two or more witnesses, otherwise it will be invalid, and this is true even if the will be a disposing as well as a revoking document. Twilley v. Durkee, 72 Colo. 444 , 211 P. 668 (1922).

Revocation of a particular will by mere inference of law or presumption is limited to a very few instances in our modern practice. Woodward v. Woodward, 33 Colo. 457 , 81 P. 322 (1905).

Presumption when will cannot be found. When a will, last seen in the possession of the testatrix, cannot be found following her death, there is a presumption that the testatrix destroyed the will with the intent to revoke it. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

This presumption may be rebutted by evidence of decedent's declarations tending to prove decedent believed the will to be in existence unrevoked. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Testator's cancellation of fully executed carbon copy of will raises presumption of intent to cancel. A testator's cancellation of a duplicate original or fully executed carbon copy of a will which is in the testator's possession at his death raises a presumption that the testator intended to cancel the other duplicate original or the original will in the possession of another. Tong v. Tong, 619 P.2d 91 (Colo. App. 1980).

Thus, a subsequent conveyance of devised land does not revoke the will. Where a will devised real estate in fee, a subsequent conveyance of the real estate to the devisee in trust for the benefit of the devisor, did not revoke the will, and, at the death of the devisor, all the title which he had to the land devised, both legal and equitable, passed to the devisee. Woodward v. Woodward, 33 Colo. 457 , 81 P. 322 (1905).

The word “will” in this section is used in the sense of a testamentary instrument which disposes of the testator's property, to take effect at his death. A written instrument under the section, unless it disposes of property, to take effect at the testator's death, is not a will within the meaning of our statute. Twilley v. Durkee, 72 Colo. 444 , 211 P. 668 (1922).

The express revocation of a former will is at least prima facie evidence that such a former will was in existence at the time the will containing the revocation clause was made, and where the question becomes material, it is incumbent upon the proponent to show the nonexistence of a former will. Twilley v. Durkee, 72 Colo. 444 , 211 P. 668 (1922).

Evidence satisfying language of statute. Competent evidence received by the court that there was a writing executed, declared and attested to on a certain date, expressly revoking all previous wills, satisfies the language of the statute. Any other interpretation would give undue prominence and unwarranted preference to the actions of burning, tearing, or obliterating (which effectively at the moment of action accomplishes a revocation) and would hold in abeyance the efficacy of the other portion of the statute. Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

Evidence insufficient to show revocation. In re Chance's Estate, 124 Colo. 436 , 238 P.2d 879 (1951).

No revocation by second testamentary instrument except by express language. While in certain cases it is possible to construe a second testamentary instrument as revoking a former, or as revoking certain bequests, or devises thereof, the second instrument may not effectuate the revocation of the former except by express language, or by necessary implication arising from express provisions of the later instrument. In re Estate of McKeown v. Macrum, 28 Colo. App. 49, 470 P.2d 611 (1970).

However, the use of the word “revocation” or “revoke” is not necessary. If the codicil amends and reamends, the effect is to remove the first article as it appears in the will. The first codicil removes the first article of the will and substitutes a new first article. The second codicil then removes the amended first article and substitutes a completely new first article. In re Estate of McKeown v. Macrum, 28 Colo. App. 49, 470 P.2d 611 (1970).

The same degree of mental capacity is required for the revocation of a will as is necessary for its execution. In re Estate of Sebben, 151 Colo. 12 , 375 P.2d 516 (1962).

The presumption of revocation arising from the unavailability of a will may be rebutted by evidence that the testator was mentally incapacitated to revoke it. In re Estate of Sebben, 151 Colo. 12 , 375 P.2d 516 (1962).

Nothing in the statute implies that the revocation does not really take effect until the day when the will is admitted to probate. Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

If any of the acts called for by this section are done with animus revocandi, the revocation becomes complete. Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

Intent to revive not inferred from continued existence of revoked will. The mere continued existence physically of a will that has been expressly revoked by one of the means provided in the statute cannot support an inference that the decedent intends such will to be revived at some later date. Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

Both methods of revocation contemplate utter destruction and annihilation. Since the general assembly provided two methods one by burning, etc., the other by a written will, and as the burning consumed the paper on which the earlier will was written, and with it the completed will itself, this language meant utter destruction and annihilation, whether revocation was effected by physical force, or by the execution of a later will by the testator. In the absence of a provision in the revoking statute to the contrary, courts will not assume that the general assembly intended solely and only to effect an entire destruction by the first, and either a partial or entire destruction by the second method. Bailey v. Kennedy, 162 Colo. 135 , 425 P.2d 304 (1967).

Determination of “exclusive possession” contingent on the factual circumstances of each case and not to be construed too narrowly. Because the secretary was in the employ of the decedent, the decedent was still considered to have possession of the will when it was in the secretary's physical possession. In re Estate of Schumacher, 253 P.3d 1280 (Colo. App. 2011).

Signature not required by a cross-out to effectuate a partial revocation. When a holographic will was properly executed, no additional signature or acknowledgment is necessary to allow compliance with a cross-out if the testator's intent has been proved by clear and convincing evidence. In re Estate of Schumacher, 253 P.3d 1280 (Colo. App. 2011).

Applied in In re Estate of Decker, 194 Colo. 143 , 570 P.2d 832 (1977).