EIGHTH CONCEPT: REVOCATION BY PHYSICAL ACT Flashcards
Elements for Revocation by Physical Act (3 elements): what are they?
- Will must be burned, torn, cancelled (lined out), destroyed or obliterated (erasing).
- Testator must have the simultaneous intent to revoke.
- The act must be done either by testator, or by some one in testator’s presence and at his direction.
If testator accidentally destroys his will, thereafter finds out about it and says, “That’s okay because I wanted to revoke it anyway,” is the will revoked?
No, The act and the intent must coincide
What is an Interlineation?
Writing between the lines
Testator executes a typed formal (attested) will that states, “I leave $1,000 to Mary.” Testator then takes his pen, crosses out the $1,000 and interlineates “$1,500” just above the $1,000. Testator signs his name. Question: Do we have a holographic codicil on top of a formal will?
No, The $1,500 gift is invalid as a holograph because the material provisions (gifts and names of the beneficiaries) are not in testator’s own handwriting
Testator executes a typed formal (attested) will that states, “I leave $1,000 to Mary.” Testator then takes his pen, crosses out the $1,000 and interlineates “$1,500” just above the $1,000. Testator signs his name. What result?
Mary takes nothing.
[1] The $1,500 gift is invalid as a holograph because the material provisions (gifts and names of the beneficiaries) are not in testator’s own handwriting.
2) the $1,000 gift has been revoked by physical
act (cancellation).
Testator executes a typed formal (attested) will that states, “I leave $1,000 to Mary.” Testator then takes his pen, crosses out the $1,000 and interlineates “$1,500” just above the $1,000. Testator signs his name. MAry gets nothing under cancellation and codicil rules, what about DDR?
The revocation of the $1,000 was conditional, dependent, and relative to the $1,500 being effective. Because the $1,500 was not effective, by operation of law, the $1,000 was never revoked.
If the original gift to Mary was $1,500 and testator cancelled this out and the interlineation was $1,000, can DRR be used to give Mary the original $1,500?
When the interlineation is less than the cancelled
provision, DRR will not be used. Mary will take nothing.
Testator executes a holographic will that states, “I leave $1,000 to Mary.” Testator then takes his pen, crosses out the $1,000 and interlineates just above the $1,000, “$1,500.” (Note that for this hypo we can even stipulate that testator does not sign his name again.)
we have a revocation of the $1,000 by physical act (crossing out) and a valid new disposition: Mary takes the $1,500. Because testator’s prior signature is deemed adopted at the time the interlineation is made and all the material terms are in T’s own handwriting.
Can you use cancellation to increase a gift?
No. You cannot increase a co-beneficiary’s gift by cancellation.
“I leave my farm to X and Y.” Testator subsequently cancels out Y’s name. What does X take?
X takes ½ of the farm, the other ½ goes to the residuary devisees or, if none, by intestacy.
Testator executes a valid typed formal will. Subsequently testator writes “Null and Void” across the face of the will. What result?
writing “Null and Void,” even without a signature, is a valid cancellation of the typed formal will.
Testator and witnesses sign the will, then they do it
again on a duplicate original. Thus, testator signs and witnesses sign on duplicate #1; then they sign again on duplicate #2. Consequently, there are 2 sets of original signatures. What happens if If testator, or someone in testator’s presence and at his direction, revokes by physical act one of the duplicate originals?
the other duplicate original also is revoked, as a mater of law.
What is the consequence of finding a will in a mutilated condition?
there is a rebutable presumption that T mutilated the will with an intent to revoke the will
Testator has a safety box in a bank, and is the only one with access. At testator’s death the will is found to be in a mutilated condition. What result?
It is presumed that testator mutilated the will with the intent of revoking the will.
