(3) Wills: Modifications, Substitutes & Revocations

Question 1

Modification of a Will by Codicil

Answer 1

Definition: A codicil is a supplement to a will that amends, modifies or revokes the will. A codicil must be executed in the same formalities as a will or holographic will.

Rule: A validly executed codicil republishes the will as of the date of the codicil. A validly executed codicil will also cure any interested witness issues with the original will.

Question 2

Ambiguities in a Will

Modification of a Will

Answer 2

A court will consider extrinsic evidence to clarify any ambiguities in a will.

Question 3

Acts of Independent Significance

Modification of a Will

Answer 3

A court may use an act of independent significance to fill in the gaps of a will. Acts of independent significance are those with significance outside of the will-making process (acts that have no testamentary affect).

Question 4

Integration

Modification of a Will

Answer 4

Documents will be integrated into a will if the testator intended them to be part of the will and they were physically present at the time of the will’s execution.

Question 5

Incorporation by Reference

Modification of a Will

Answer 5

A document or writing may be incorporated into a will be reference if it (1) was in existence at the time the will was executed; (2) is sufficiently described in the will; and (3) the testator intended to incorporate it.

Question 6

Revocation by Physical Act

Revocations of a Will

Answer 6

A will is revoked by physical act if: (1) the testator intended to revoke the will; AND (2) the will is burned, torn, destroyed or cancelled by the testator (or by someone else at the testators direction and in the testators presence).

Question 7

Duplication Rule

Revocations of a Will - Revocation by Physical Act

Answer 7

A will executed in duplicate is also revoked if one of the duplicates is revoked by physical act (the duplicate must be signed).

Question 8

Revival by Intent

Revocations of a Will - Revocation by Physical Act - Duplicaiton Rule

Answer 8

A will revoked by physical act will be revived if a testator shows intent for its revival.

Question 9

General Rule:

Revocations by Subsequent Will or Codicil

Revocations by Subsequent Will or Codicil

Answer 9

A testator can revoke a will be executing a subsequent valid will or codicil.

Question 10

Revival by Republication

Revocations by Subsequent Will or Codicil

Answer 10

A will revoked by a subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.

Question 11

Revocation by Doctrine

Revocations by Subsequent Will or Codicil

Answer 11

Rule: In CA, any gifts to a spouse are revoked upon divorce, unless it can be shown that the testator intended for the will to survive.

Question 12

Revival upon Remarriage

Revocations by Subsequent Will or Codicil

Answer 12

If the divorced couple remarries then the provisions in favor of them will be revived.

Question 13

Partial Revocation

Revocations by Subsequent Will or Codicil

Answer 13

Rule: A testator may partially revoke a will by crossing out specific portions.
*The testator cant increase the gift in a will through partial cancellation. This can only be done through adhering to the will formalities.

Holographic Will Rule: Partial revocation of a holographic will may be done through writing in-between the lines of the will.

Question 14

Dependent Relevant Revocation

Revocations by Subsequent Will or Codicil

Answer 14

The dependent relevant revocation doctrine cancels a revocation that was made under a mistaken belief of law or fact by the testator. The doctrine applies when the testator would not have revoked their original will but for the mistaken belief that another will they prepared would be valid.

Question 15

Will Substitutes

Answer 15

1. Joint Property - Right of Survivorship
2. Inter Vivos Trust
3. Joint Bank Accounts
4. Life Insurance
5. Payable on Death Clauses
6. Deed

Question 16

Joint Property: Right of Survivorship

Will Substitutes

Answer 16

Such property passes outside of a will and intestacy as the surviving joint-tenants have a right of survivorship. Right of survivorship means that when one joint tenant dies their interest in the property is automatically transferred to the other joint tenant.

Question 17

Inter Vivos Trust

Will Substitutes

Answer 17

The trustee holds legal title and beneficiary hold equitable title meaning the property doesn’t transfer upon the death of the creator of the trust and therefore the property is nonprobate.

Question 18

Joint Bank Accounts

Will Substitutes

Answer 18

Joint bank accounts are the right to the surviving party on the account as well and do not need to go through probate to transfer to them.

Question 19

Life Insurance

Will Substitutes

Answer 19

a beneficiary of a life insurance policy takes by virtue of the contract and as such the property is nonprobate.

Question 20

Payable on Death Clauses

Will Substitutes

Answer 20

a third party holds the property and will release after receiving proof of death (i.e., death certificate). Ex. Pension plan, payable on death bank accounts, etc.

Question 21

Deed

Will Substitutes

Answer 21

a deed is an effective nonprobate transfer if the deed is delivered to the grantee prior to the grantors death and the delivery is not conditional.