Is the validity affected by subsequent events? Flashcards
Is Will Affected by Subsequent Events
Approach
A. REVOCATION
1. Subsequent Testamentary Instrument
a. Express revocation
b. Implied revocation
2. Physical Act
a. Presumption
b. Lost/Destroyed Will
3. Operation of Law
a. Omitted spouse/child
b. Divorce
c. Forfeiture 4. Dependent Relative Revocation
B. REVIVAL
Revocation by Subsequent Testamentary Instrument (express)
A will may be revoked in whole or in part by the express terms of a later will or codicil, whether or not it makes any disposition of property (needs required formalities).
Revocation by Subsequent Testamentary Instrument (implied)
A will may be revoked in whole or in part by implication from terms of a subsequent instrument. To the extent that a second will makes inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified.
Revocation by Physical Act
To revoke a will by physical act, (1) the will must be burned, torn, cancelled, destroyed, or obliterated, (2) T must have had the simultaneous intent to revoke the will, AND (3) the destructive act must be committed by T or a person in T’s presence and at his direction.
(remember presumptions)
Operation of Law - Marriage
omitted or pretermitted spouse
If a person marries after executing their will and the spouse survives but is not provided for, SS may take (in addition to their own CP) their intestate share of the WP estate (may not exceed 1/2 of separate property).
(unless disinherited, or provided outside the will, or prenup)
Operation of Law - Children
omitted or pretermitted child
If a child is born after the parent executes a will and the will omits any mention of the child, the child will take their intestate share of the estate. Exception: (a) the will expressly and intentionally omits the child and states so, (b) there was a transfer outside the will that was intended to be in lieu of a gift in the will, (c) D had one or more children and gave substantially all of the estate to the other parent of the omitted child.
Operation of Law - Divorce
The dissolution of T’s marriage (after 1-1-85) automatically revokes any disposition or power in T;s will in favor of T’s former spouse. (if prior to 85, express renunciation needed in SA, etc.)
Operation of Law - Forfeiture Statute
Probate Code Section 259 deems abusers of elders or dependent adults to have predeceased the decedent.
Dependent Relative Revocation (DRR)
DRR applies when a T revokes his will/gift upon the mistaken belief that another disposition of his property would be effective; and but for the mistake would not have revoked his will/gift.
**If the revoking instrument is defectively executed, DRR does not apply because there has been no revocation!!!
Revival
Revival is a theory allowing a revoked will to be probated because the revoking will was itself revoked.
Holographic Codicil
A handwritten codicil may be valid if all material portions are in T’s handwriting and signed by T anywhere on the doc. A date is not required for validity but may be relevant if another instrument is also offered for probate.
Revocation by Physical Act Presumption
When the will was known to be in the possession of the testator, and testator remains competent until death, any physical changes in the terms of the will are presumed bo have been made by the testator. Without any facts to the contrary, the physic act of ___, with the simultaneous intent to revoke is a valid revocation by physical act.
Legal effect of Increase
An increase by interlineation is not permitted under the Probate Code unless it meets the requisite formalities for a valid codicil (i.e., witnessed, etc.)
Dependent Relative Revocation (DRR)
Doctrine applies when T revokes his will on the mistaken belief that another disposition of his property is valid–but for the mistaken belief T would not have revoked his will
