Codicils & Revocation Flashcards
What is a codicil?
A change or supplementation to an existing will.
When does a codicil require all testamentary formalities?
If it creates a new testamentary scheme
What provisions of an existing will are “republished by reference” through a codicil?
all original provisions not overruled by the codicil are republished if the codicil referenced the earlier will
Is crossing out the name of one of the testator’s children a “new testamentary scheme”?
Yes; the strike out must be signed and witnessed
unless the strike out decreases the size of the gift only and adds it to the residue
How is a will revoked?
(1) executing a subsequent valid will OR
(2) a physical act of destruction with intent to revoke
If the testator directs another person to destroy the will what is required to prove revocation?
(1) destroyed in the testator’s presence and
(2) attestation by two witnesses
If a will was revoked by physical act, is an earlier will revived?
yes if the revival of the first will was the testator’s intent; the court will hear extrinsic evidence
What is the effect of revocation on codicils?
Codicils are also revoked unless contrary to the grantor’s clear intent
When can a will be partially revoked?
when it increases the residue of the estate
Can specific gifts be taken away without testamentary formalities?
Yes (strike out)
Can specific gifts be added without testamentary formalities?
No
What is the impact of federal ERISA law on employee benefits devised in a will?
Under ERISA, a spouse’s interest in pension plan is protected and cannot be bequeathed to a third party. If a former spouse is a named beneficary, the former spouse will be entitled to the proceeds.
