Will Revocation and Revival Requirements in North Dakota

At a glance

North Dakota combines the Uniform Probate Code's ordinary will rules with a separate Electronic Wills Act. Chapter 30.1-08 answers the paper-will revival question three different ways depending on how the later will was revoked. Chapter 30.1-37 modifies the revocation method and proof rule for an electronic will.

Requirements one by one

Executing a subsequent will

Section 30.1-08-07(1)(a) revokes a will or any part "by executing a subsequent will that revokes the previous will or part expressly or by inconsistency."

Subsection (2) covers the silent case: where the later will says nothing about revocation, executing it "wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will."

North Dakota names no separate revocation writing. A document meant to revoke must satisfy § 30.1-08-02, and here North Dakota is more flexible than most: the will must be in writing and signed by the testator (or by another in the testator's conscious presence and at the testator's direction), and then either signed by at least two witnesses, each within a reasonable time after witnessing the signing or an acknowledgment, or acknowledged by the testator before a notary public. The notary route is a genuine alternative to witnesses, not an add-on.

A handwritten instrument also works: it is valid as a holographic will, witnessed or not, if the signature and material portions are in the testator's handwriting.

An electronic will is also a will for all purposes under § 30.1-37-02. Section 30.1-37-05 says an electronic will may revoke all or part of a previous will, and a subsequent will may revoke all or part of an electronic will expressly or by inconsistency.

The revocatory act

Section 30.1-08-07(1)(b) requires the act be done "with the intent and for the purpose of revoking the will or part." The defined acts are burning, tearing, canceling, obliterating, or destroying the will or any part of it.

The subsection then forecloses the most common argument:

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.

A line across a blank margin can revoke. So can a scorch that missed the text. The rule makes deliberate revocation easier and accidental damage riskier.

The paper list does not control the electronic-will act route. Section 30.1-37-05 instead permits a "physical act" if a preponderance of the evidence establishes that the testator acted with intent to revoke all or part. It does not enumerate the act or state that deleting a file, losing access, or destroying a device is sufficient by itself.

Conscious presence

Another individual may perform the act, but only "in the testator's conscious presence and by the testator's direction." Conscious presence is broader than line of sight — it asks whether the testator was aware of the act through sight, hearing, or general consciousness of events. Both awareness and direction are required.

The electronic rule is different. A directed physical act must occur in the testator's physical presence, and the act plus revocatory intent must be proved by a preponderance of the evidence. Neither route adds witnesses to the revoking act.

The replace/supplement presumptions

One question decides most two-will cases: does the later will dispose of everything?

• Complete disposition → replace. The testator is presumed to have intended the later will to replace. Unless rebutted by clear and convincing evidence, "the previous will is revoked; only the subsequent will is operative." § 30.1-08-07(3).
• Incomplete disposition → supplement. The testator is presumed to have intended it to supplement. Unless rebutted by clear and convincing evidence, it revokes "only to the extent the subsequent will is inconsistent," and each will stays fully operative where they do not conflict. § 30.1-08-07(4).

Clear and convincing evidence sits well above the ordinary more-likely-than-not standard.

Revival: three rules, not one

Section 30.1-08-09 turns on two facts — did the later will revoke the earlier one wholly or partly, and was the later will itself revoked by a physical act or by a still-later will?

1. Later will wholly revoked the earlier one, then was destroyed. The earlier will "remains revoked unless it is revived," and it revives only if the intent is "evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations." The default runs against revival. § 30.1-08-09(1).
2. Later will only partly revoked the earlier one, then was destroyed. The revoked part "is revived unless it is evident" the testator did not so intend. The default flips toward revival. § 30.1-08-09(2).
3. Later will was revoked by another, still-later will. The earlier will stays revoked and revives only "to the extent it appears from the terms of the later will" that the testator intended it to take effect. Circumstances and spoken declarations drop out entirely. § 30.1-08-09(3).

The Electronic Wills Act states no separate revival consequence for its physical-act route. Section 30.1-37-02 generally applies will law to electronic wills except as modified, but § 30.1-08-09(1) and (2) expressly refer to revocatory acts under § 30.1-08-07. The current statutes do not expressly resolve whether a physical act under § 30.1-37-05 triggers the same whole-versus-part defaults.

Divorce and annulment

Section 30.1-10-04(2)(a) revokes, on divorce or annulment, every revocable disposition, appointment, power of appointment, and fiduciary nomination in favor of the former spouse and in favor of "a relative of the divorced individual's former spouse" — someone related to the former spouse by blood, adoption, or affinity who is no longer related to the divorced individual after the split.

Subsection (2)(b) also severs joint tenancies with right of survivorship, "transforming the interests of former spouses into equal tenancies in common." The word equal is North Dakota's own; the resulting shares do not track prior contribution. A third-party protection in subsection (3) preserves an interest acquired for value and in good faith before a severance writing was recorded.

Three things defeat the section: the instrument's express terms, a court order, or a marital-division contract between the divorced individuals.

Subsection (4) supplies the construction: revoked interests take effect as if the former spouse and relatives had disclaimed them, while revoked fiduciary nominations take effect as if those persons died immediately before the divorce. Subsection (5) restores provisions revoked solely by the section on remarriage to the former spouse or on nullification of the divorce or annulment.

A separation decree that leaves marital status intact is not a divorce here.

No other change of circumstances

Section 30.1-08-08 closes the family-events question: "a change of circumstances does not revoke a will or any part of it," except divorce under § 30.1-10-04 and felonious killing under § 30.1-10-03. Marriage, birth, and adoption do not revoke a North Dakota will.

What trips people up

• Which revival rule applies depends on facts you may not control. Destroying a later will that wholly replaced an earlier one leaves the earlier one revoked by default. Destroying one that only partly changed it restores the changed parts by default. The two defaults point in opposite directions.
• When the later will is revoked by a still-later will, your words don't count. Under § 30.1-08-09(3) only the terms of that later will can show revival intent. Statements to family and the circumstances of signing drop out.
• A tear that misses the words still revokes. Section 30.1-08-07(1)(b) says so expressly for burning, tearing, and canceling.
• Electronic-will acts use physical presence and a preponderance burden. Do not substitute the paper statute's conscious-presence wording or assume deletion alone proves the act.
• The electronic physical-act revival consequence is not expressly stated. The general revival section cross-references the paper revocatory-act section.
• A notarized will with no witnesses is valid here. Section 30.1-08-02(1)(c)(2) accepts acknowledgment before a notary as an alternative to two witnesses — so a notarized revoking instrument can work in North Dakota even though it would fail in many neighboring states.
• Whether your new will is "complete" decides the old one's fate. A residuary clause disposing of everything triggers the replace presumption; a document handling a few assets triggers the supplement presumption and leaves the old will alive alongside it.
• Divorce reaches your former in-laws and converts your joint title. Gifts and fiduciary appointments to relatives of the ex-spouse fall, and survivorship tenancies become equal tenancies in common.

Common questions

I tore up my newest will. Does my older one come back?

It depends on what the newer will had done. If it wholly replaced the older will, the older one stays revoked unless the circumstances or your statements around the tearing make your intent to revive it evident. If the newer will had only changed part of the older one, those changed parts come back unless it is evident you did not want them to.

Can I revoke my will with a notarized statement instead of witnesses?

The instrument still has to be a will, but North Dakota lets a will be executed by acknowledgment before a notary as an alternative to two witnesses. A notarized, properly executed subsequent will that revokes prior wills can do the job.

Can an electronic will revoke an earlier paper will?

Yes. Section 30.1-37-05(1) expressly says an electronic will may revoke all or part of a previous will.

If I remarry my ex-spouse, do the gifts to them come back?

Yes. Section 30.1-10-04(5) revives provisions revoked solely by that section on remarriage to the former spouse, and also on nullification of the divorce or annulment.

Statutes and sources

• N.D.C.C. § 30.1-08-07 — the two revocation routes, the defined revocatory acts, the touched-no-words rule, the conscious-presence directed act, the inconsistency rule, and the replace/supplement presumptions with their clear-and-convincing rebuttal standard. Official Chapter 30.1-08 text (accessed 2026-08-01).
• N.D.C.C. § 30.1-08-09 — the three revival rules: default against revival after a physical act revoking a wholly-revoking will, default toward revival after a physical act revoking a partly-revoking will, and terms-of-the-later-will only when the revocation was by a further instrument. Official Chapter 30.1-08 text (accessed 2026-08-01).
• N.D.C.C. § 30.1-08-08 — no revocation by change of circumstances outside the divorce and homicide sections. Official Chapter 30.1-08 text (accessed 2026-08-01).
• N.D.C.C. § 30.1-10-04 — divorce and annulment revoking provisions for the former spouse and the former spouse's relatives, severance into equal tenancies in common, disclaimer and predecease construction, and revival on remarriage or nullification. Official Chapter 30.1-10 text (accessed 2026-08-01).
• N.D.C.C. § 30.1-08-02 — witnessed, notarized, and holographic execution, and the extrinsic-evidence rule for testamentary intent. Official Chapter 30.1-08 text (accessed 2026-08-01).
• N.D.C.C. § 30.1-08-10 — incorporation by reference of a writing in existence when the will was executed. Official Chapter 30.1-08 text (accessed 2026-08-01).
• N.D.C.C. §§ 30.1-37-02 and 30.1-37-05 — electronic wills as wills for all purposes and their separate later-will/physical-act revocation rule, including the physical-presence and preponderance requirements. Official Chapter 30.1-37 text (accessed 2026-08-01).