Pg 11

Question 1

What are the three major presumptions about revocation?

Answer 1

• when the will is lost
  – when there’s more than one iteration of a will and one or more is revoked
  – presumption of revocation on divorce

Question 2

If a will is lost, what is the presumption about revocation there?

Answer 2

If the testator wanted his will to apply, he would’ve kept it and made it available, and since he didn’t (because it cannot be found), it is presumed that he intentionally destroyed it. The rule is that if the testator’s will was last in his possession, he was competent until death, and neither a duplicate nor the actual will can be found at his death, it is presumed that he destroyed it with the intent to revoke it.

Question 3

How can you rebut the presumption that if you cannot find a will on the testator’s death, he likely destroyed it?

Answer 3

Any evidence that shows there was no intention to revoke, that someone else had access to the will, that the testator was sloppy so he could have lost it in his mess, a month before his death his house burned down, testimony that he told someone he couldn’t find his will but he still wanted it to be valid, etc. As long as the evidence could explain why the will cannot be found, that can be used to rebut the presumption.

Question 4

Does the presumption if you cannot find the testator’s will that he intentionally destroyed it apply even if you can find a copy of it?

Answer 4

No, it only applies if you cannot find the original or any duplicate originals.

Question 5

If a will was not in the possession of the testator at his death, and now it cannot be found, does the presumption that he destroyed it with the intent to revoke it apply?

Answer 5

No, that presumption only applies if it was in the testator‘s possession. If it was in somebody else’s possession then the presumption is that it was lost and not revoked

Question 6

If a testator died and his attorney had his original will, but the testator’s copy cannot be found, is there a presumption that it was revoked?

Answer 6

No, because the will was not in the testator‘s possession when he died - it was in the attorney’s possession.

Question 7

If a testator wasn’t competent at death, why does that stop the presumption if you cannot find his will that he revoked it by destroying it?

Answer 7

Because you cannot assume that he made a rational decision about revoking or destroying his will

Question 8

If you cannot find a testator’s will, but you were able to rebut the presumption that he destroyed it in order to revoke it before his death, what do you do with regard to probating the will?

Answer 8

A written statement of testamentary words or their substance can be used, or a photocopy of the will can be offered as evidence of the contents of the original, or could write down a recollection from someone with knowledge of the will’s contents.

Question 9

If there’s more than one iteration of a will and one or more is revoked, when is a will that is executed in duplicate considered to be revoked?

Answer 9

If one of the duplicates is burned, torn, canceled, obliterated, or destroyed with intent to revoke it by either the testator or someone in his presence and by his direction. Destroying one original revokes them all.

Question 10

What is it smart to do if you have a will that has duplicate originals and you want to revoke it?

Answer 10

Tell all of the holders of the duplicate originals that you revoked the original

Question 11

If you destroy a photocopy of your will, does that revoke it?

Answer 11

No, you have to destroy the original

Question 12

If you execute your will in triplicate, and on your desk, two of the duplicate originals are found and a third one is torn into pieces in a file that says, “because I hate everyone in this will.“ What can be assumed?

Answer 12

That you revoked the will and so it will not be prorated

Question 13

What is the difference between these words with regard to a will: duplicate, original, duplicate original?

Answer 13

– duplicate: photocopy
– original: iteration of the document that the testator actually signed
– duplicate original: identical copies that the testator signed at the same time

Question 14

What is involved in the presumption of revocation on divorce?

Answer 14

Unless the testator expressly provides otherwise in his will, if the marriage ends after executing the will, the dissolution or annulment revokes the gift to the former spouse and the ex-spouse is treated as if he predeceased the testator.

Question 15

If you get married, make a will that leaves everything to your spouse, and then you later divorce and do not change your will, and you die, what happens?

Answer 15

The divorce create a presumption of revocation of the gift to the spouse, so the spouse is treated as having predeceased the testator.

Question 16

If you left everything to your spouse in your will, and then you got divorced, and you didn’t change your will, how can you get around the presumption of revocation on divorce?

Answer 16

You can remarry your former spouse, or you can expressly say that you leave everything to your wife, even if you divorce.

Question 17

If there is a gift in your will to your spouse who is now your ex spouse, does that revoke the entire will?

Answer 17

No, just the gift to the ex-spouse. It doesn’t revoke gifts to the relatives of the ex spouse

Question 18

If at the time of your death you were separated from your spouse but not officially divorced, does that create the presumption of revocation on divorce that would take away the gift to your separated spouse?

Answer 18

No, because the husband and wife status has not been terminated, so there is no revocation. There must be a legal divorce for this presumption to apply

Question 19

Is it a good idea for an attorney to keep original copies of a will?

Answer 19

No, because it puts pressure on the client to go back to the attorney to modify or revoke the will, plus the attorney is responsible if his files are destroyed or he wants to move or retire. It is smart for the attorney to keep a copy of the original and to give the original to the testator because then if the original is lost, the attorney has a copy that can be offered as evidence of the original’s contents.

Question 20

What is the document called that partially revokes a will?

Answer 20

A codicil

Question 21

What is a codicil?

Answer 21

A testamentary instrument that supplements instead of replaces an earlier will

Question 22

Do codicils supersede earlier wills?

Answer 22

Only to the extent of inconsistency

Question 23

If your first will says, “Entire estate to A.” Then you make a second will that is written, signed, and attested, and it says, “I revoke will #1 to the extent it is inconsistent with this will and I now leave half of my estate to B.“ What has happened?

Answer 23

A partial revocation of the first will to the extent that it is inconsistent with the second will.

Question 24

Can you partially revoke a will by a physical act through interlineation?

Answer 24

Yes, this means marking a line through words. This is allowed to just cancel portions of your will.

Question 25

What is the thing you have to watch out for with regard to interlineation?

Answer 25

Marking a line through words can cancel portions of your will, but if you were trying to modify by writing something in, then it has to meet will formalities

Question 26

If someone crosses out a portion of their will and then tries to modify it by writing something in, how do you deal with that on an essay?

Answer 26

You have to separately analyze the revocation, which occurred by marking a line through a portion, and then the attempted modification, which occurred by trying to write something in. Most times the revocation is totally effective but the modification needs to meet will formalities

Question 27

If you make a valid will that leaves your car to A, $10,000 to B, and the rest to C, and then later you cross out the gift to B, what has happened?

Answer 27

That is a partial revocation by the physical act of cancellation and B no longer gets his gift, so the $10,000 would end up going to C.

Question 28

If you make a valid will that leaves your car to A, $10,000 to B, and the rest to C, and then later you cross out the gift to B and write in “$15,000” instead of $10,000, what has happened?

Answer 28

When you crossed out the $10,000, that was a partial revocation, but the new modification of $15,000 has to meet will formalities, which do not exist here. So this is an invalid attempt to make a holographic codicil. So now B gets nothing. If the testator had hand written “$15,000 to B when I die” and had initialled it, that would be a valid modification.

Question 29

If you revoke a codicil, does that revoke the underlying will as well?

Answer 29

No. A codicil is just a supplement to a will, so it cannot revoke the provisions in the will. It can only add, change, or remove something from the will that it is supplementing.

Question 30

If you revoke an underlying will, does that revoke any codicil that modifies it?

Answer 30

Yes