Chapter 6: Revocation of Wills Flashcards
How may a will be revoked?
Subsequent instrument that meets the required formalities.
Physical destruction or cancellation or
By operation of law
What is a subsequent instrument?
A new will
How may a will be revoked by physical destruction?
A will may be revoked by burning, cancelling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it.
If will was once known to exist, but cannot be found at T’s death, or is mutilated, there is a rebuttable presumption of revocation.
Third party can physically destroy and so revoke on T’s behalf, so not as done at T’s direction ad in T’s presence.
How may a will be revoked by operation of law?
Dissolution of marriage revokes all will provisions in favor of the former spouse, including appointments as executor, trustee, etc. and grants of power of appointment, unless the will specifically provides otherwise.
In NC: a subsequent marriage does not revoke a will.
Lost wills
If a rebuttable presumption of revocation is rebutted, look for a duplicate.
The burden is on the proponent of the lost will to show existence of a will.
Revocation of a will revokes all codicils to it since they are considered part of the will.
Revival of a will
A revocation of a subsequent will does not revive a former will.
To revive a former will you have to: properly reexecute it OR incorporate it by reference in a subsequent will or codicil that is properly executed.
Dependent Relative Revocation
If a will is revoked based upon a mistake of law or fact, then a court may apply DRR and say the most recently revoked will is revived.
Must show reviving the second will would be more in line with T’s wishes then intestacy.
Will Contracts
Can be a K to make a will, not to revoke a will, or to die intestate.
Writing requirement: may be a will that states the material provisins of the K; or a separate writing w/ the material terms of the K; or reference in a will to such a K and extrinsic evidence proves the terms.
Look for consideration for the promise.
Follows basic K law.
Look for clear evidence of the intent not to revoke.
