6. Revocation and Related Issues Flashcards
Requirements for a revocation by a physical act:
- Intent to Revoke
- Mental Capacity
- Physical Act
Proxy Revocation
Testator may direct someone else to destroy or cancel the will but it must be
- Done at the Testator’s request,
- In the Testator’s presence, and
- In the presence of two witnesses.
Is a partial revocation by a physical act recognized in NY?
No
What formalities must a subsequent will or codicil meet in order to revoke a previously executed will?
The will or codicil must meet all will formalities
Testatrix’s will states, “This is my last will.” This __________ all prior testamentary instruments.
Does not revoke
Revocation by Inconsistency
If new will completely disposes of testator’s property, the old will is completely revoked by inconsistency.
What happens if new will partially disposes of testator’s property?
The old will is revoked only as to the inconsistent parts.
When is there a presumption of revocation?
If the will was in the possession of the testator or if the testator had ready access to it when it was last seen, failure to produce the will or if the will is found in a damaged condition, the presumption exists that the testator destroyed or damaged the will with the intent to revoke it
In order to overcome the presumption of revocation of a lost will, a proponent must prove:
- The lost will was duly executed,
- The cause of non-production such as destruction by fire, flood, theft, hurricane, etc., and
- The provisions of the wills are proved clearly and distinctly by at least two credible witnesses or by a copy or draft of the will proved to be true and complete.
Express Conditional Revocation
The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.
