‘Ancient’ Rule Requiring Physical Act to Cancel Will Survives

Wednesday, July 9, 2025

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Court of Appeal:

‘Ancient’ Rule Requiring Physical Act to Cancel Will Survives

Opinion Says Probate Code Retains Demand That Revocation Be Accompanied by Alteration to Original, Judge Erred in Finding That Later Stand-Alone Document Expressing Clear Intent to Revoke Was Effective

By Kimber Cooley, associate editor

Div. Three of the Fourth District Court of Appeal has held that a trial judge erred in giving effect to a notarized document providing that the signer “hereby revoke[s] all estate planning documents I have previously executed,” finding that the stand-alone page fails to qualify as a revocation of the decedent’s prior will under the strict demands of the Probate Code governing cancellation.

At issue is Probate Code §6120, which provides:

“A will or any part thereof is revoked by any of the following:

“(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.

“(b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it….”

In the opinion, filed Thursday and publicly released late Monday, the court declared that the purported revocation was ineffective for failing to comply with §6120. Justice Nathan Scott authored the decision, saying:

“Requiring a physical alteration to the will to find a revocation is an ancient concept, perhaps in need of revisiting….But [the party seeking revocation] presents no recent California authority expanding the concept of cancellation beyond its historically narrow sense….As a stand-alone document, the 2018 revocation could not and did not cancel the 2006 will.”

The court also concluded that the stand-alone “revocation” did not qualify as a “subsequent will” because it did not contemplate the transfer of property and was not witnessed by two parties.

Scott acknowledged that “probate law trends towards flexibility” in enforcing intent but pointed out that California has not adopted the Uniform Probate Code’s “harmless error” rule in full, which would allow an instrument to be recognized as valid even if a technical mistake was made in formation. He remarked:

“California remains among [a] handful of states [that have] declined to enact the Uniform Probate Code’s harmless error rule for ‘a partial or complete revocation of the will.’…Perhaps this too deserves revisiting.”

Contested Will

The question arose after two siblings, Anush and Robert Boyajian, contested the will of their deceased mother, Layla Boyajian, pointing to competing documents. Anush Boyajian referred to an instrument, signed in 2006 when the decedent was 71 years old, providing that “I leave [everything] that I [own]…to my daughter Anush.”

Robert Boyajian cited a second document titled “REVOCATION OF POWERS OF ATTORNEY AND ESTATE PLANNING DOCUMENTS,” signed in the presence of a notary in 2018, which specifies that “I, LAYLA BOYAJIAN, to hereby revoke any and all estate planning documents I have previously executed, including but not limited to” any “[w]ills executed by me.”

Following a bench trial, Orange Superior Court Judge Ebrahim Baytieh ruled that the 2018 document “canceled” the 2006 will under §6120(b), finding that the decedent specifically intended to revoke the earlier instrument.

Thursday’s opinion, joined in by Acting Presiding Justice Eileen C. Moore and Justice Maurice Sanchez, reverses the order. Scott wrote:

“[W]e conclude California law (1) requires a physical alteration of a will to effect a revocation by cancellation, and (2) a stand-alone revocation does not constitute a subsequent will unless it also transfers property upon death. The court thus erred by giving effect to the 2018 document.”

Reasonably Susceptible

The jurist cited the 1898 California Supreme Court decision in Estate of Olmstead and opined:

“The word ‘canceled’ is reasonably susceptible to both broad and narrow interpretations. Broadly, ‘cancel’ might mean to invalidate by any means. One might cancel a subscription online or by phone call. One might cancel a contract by giving separate written notice.

“But back in the Gilded Age, our high court gave ‘cancel’ a narrow, hyper technical sense. It construed a predecessor statute of section 6120 and explained that, ‘[i]n its primal significance,’ to cancel a will required a ‘lattice work’…drawn on top of preexisting text….While this 127-year-old case is still good law, even if we found ‘canceled’ to be ambiguous, extrinsic aids confirm the Legislature intended it to be used in a narrow sense.”

Noting that §6120 is substantively the same as Uniform Probate Code §2-507, he pointed to official comments to that section indicating that something must be “done to” the will to effectuate a revocation. Scott said that this interpretation is “consistent with section 6120(b), which allows revocation when a will is ‘burned, torn, canceled, obliterated, or destroyed.’ ”

Under these circumstances, he concluded that “the word ‘canceled’ is still best construed to require a physical act akin to burning, tearing, obliterating, or destroying” and declared that “the 2018 revocation could not…cancel the 2006 will.”

Turning to whether the 2018 document qualified as a “subsequent will” under §6120(a), he pointed out that Robert Boyajian relied on Probate Code §88, which specifies:

“ ‘Will’ includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.”

Scott acknowledged that “[t]here is no dispute the 2018 document merely revokes a will.” However, he remarked that “we find…hurdles to applying this definition of ‘will’ to the 2018 document.” Saying that the code defines “instrument” to require a beneficiary designation or property transfer, he reasoned:

“The 2018 document meets neither the Probate Code’s definition of ‘instrument’…nor the Supreme Court’s conception of ‘testamentary intent.’ It names no beneficiary. It does not transfer or dispose of any property upon Layla’s death.”

He also noted that Probate Code §6110(c)(1) requires a will to be witnessed by “at least two persons,” a circumstance unmet for the 2018 document. Robert Boyajian points to an amendment to the section, enacted in 2008, which provides:

“(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”

Rejecting the assertion that this amendment requires the court to treat the document as a subsequent will, Scott wrote:

“Omitted from section 6110, subdivision (c)(2) is the portion of the Uniform Probate Code that would give effect to the decedent’s intent concerning ‘a partial or complete revocation of the will.’….We conclude the omission was intentional, reflecting the Legislature’s judgment that witness formalities are still required to turn a stand-alone revocation into a will.”