Pg 11 Flashcards
What are the three major presumptions about revocation?
- 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
If a will is lost, what is the presumption about revocation there?
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.
How can you rebut the presumption that if you cannot find a will on the testator’s death, he likely destroyed it?
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.
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?
No, it only applies if you cannot find the original or any duplicate originals.
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?
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
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died and his attorney had his original will, but the testator’s copy cannot be found, is there a presumption that it was revoked?
No, because the will was not in the testator‘s possession when he died - it was in the attorney’s possession.
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?
Because you cannot assume that he made a rational decision about revoking or destroying his will
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?
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.
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?
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.
What is it smart to do if you have a will that has duplicate originals and you want to revoke it?
Tell all of the holders of the duplicate originals that you revoked the original
If you destroy a photocopy of your will, does that revoke it?
No, you have to destroy the original
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?
That you revoked the will and so it will not be prorated
What is the difference between these words with regard to a will: duplicate, original, duplicate original?
– duplicate: photocopy
– original: iteration of the document that the testator actually signed
– duplicate original: identical copies that the testator signed at the same time
What is involved in the presumption of revocation on divorce?
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.
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?
The divorce create a presumption of revocation of the gift to the spouse, so the spouse is treated as having predeceased the testator.
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?
You can remarry your former spouse, or you can expressly say that you leave everything to your wife, even if you divorce.
If there is a gift in your will to your spouse who is now your ex spouse, does that revoke the entire will?
No, just the gift to the ex-spouse. It doesn’t revoke gifts to the relatives of the ex spouse
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?
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
Is it a good idea for an attorney to keep original copies of a will?
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.
What is the document called that partially revokes a will?
A codicil
What is a codicil?
A testamentary instrument that supplements instead of replaces an earlier will
Do codicils supersede earlier wills?
Only to the extent of inconsistency
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?
A partial revocation of the first will to the extent that it is inconsistent with the second will.
Can you partially revoke a will by a physical act through interlineation?
Yes, this means marking a line through words. This is allowed to just cancel portions of your will.
