Pg 12

Question 1

What is dependent relative revocation?

Answer 1

This allows the court to undo a revocation on the rationale that it was really conditional and the condition wasn’t met, so the revocation didn’t take effect. Courts need clear and convincing evidence of the testator‘s intent before they do this.

Question 2

If a will was torn up, how can a court treat it like it wasn’t?

Answer 2

Under dependent relative revocation.

Question 3

When does dependent relative revocation usually apply?

Answer 3

When an alternative disposition fails. So a testator ripped up his first will because he wants to replace it with a second will, but then the second will ends up being defective. In this case dependent relative revocation will allow the court to say that the revocation of the first will was dependent on the validity of the second will, even though the testator didn’t say that it was conditional, it was. And since that condition wasn’t met, the revocation did not take effect.

Question 4

Does dependent relative revocation excuse defects in the execution of an attempted alternative disposition?

Answer 4

No, all that it does is negates the revocation.

Question 5

What is a classic example of dependent relative revocation?

Answer 5

A revoked plan and a failed alternative disposition or substantially similar, so it is easy to say that the testator would’ve rather not had a revocation than die intestate

Question 6

Dependent relative revocation all hinges on what?

Answer 6

The intent of the testator. It looks at whether the testator would’ve preferred the earlier will over intestacy. It’s necessary to have clear and convincing evidence that this will best carries out the testator’s intent.

Question 7

What is the clue on an essay to discuss dependent relative revocation?

Answer 7

If a later will revokes an earlier one. Or if there are two sequential instruments like a will being followed by a codicil or a will followed by a valid will, and something happens to the second one. Dependent relative revocation is driven by the first will.

Question 8

How can you rebut dependent relative revocation?

Answer 8

With unambiguous and clear evidence that the testator wanted to create intestacy

Question 9

If a testator makes a will that gives his car to A, house to B, and stocks to C, then he tears up that will and he writes a second one that gives the car to A, house to B, and stocks to D, but the second one has an initial part that is typed out and the rest is handwritten and there are no witnesses, what do you do?

Answer 9

The testamentary intent is not in handwriting, so it’s not valid. The presumption is that the failed number two is what the testator really wanted, and even though dependent relative revocation does not excuse the defects in execution, the courts can try to do what the testator wanted by saying that the revocation wasn’t effective and keep number one.

Question 10

If there are two different wills that are very dissimilar and the second one is not effective, will the courts apply dependent relative revocation?

Answer 10

Likely not, because they would assume that the testator would prefer to die intestate. The focus is on what the testator probably wanted, so if applying dependent relative revocation wouldn’t best comport with what the testator’s intent was, then courts do not apply it and they let intestacy take over.

Question 11

If an initial will gives a car to A, a house to B, and stocks to C, and then a second will is written but it is ineffective and it gives the car to A, the house to F, and the stocks to G, what will likely happen?

Answer 11

You have to look at what the testator wanted and you only use dependent relative revocation if it looks like there is clear and convincing evidence that the testator would prefer the first will to be effective. Here if they were additional facts, that would be helpful.

• Ie: if F and G are intestate heirs, then intestacy is probably best.
• but if the intestate heirs are totally different from anyone listed in either will, the first will should maybe be given effect because at least those people were once mentioned by the testator, whereas intestate heirs were never considered.

Question 12

If a testator crosses out the receipt of a gift and writes in a smaller or larger amount, what do you do?

Answer 12

Dependent relative revocation can be applied because the preference of the testator is likely for that person to get some money instead of no money.

Question 13

If the testator crosses out the receipt of a gift and writes in someone else’s name, does dependent relative revocation apply?

Answer 13

Courts will look at how close the giving of the gift to the first person is to the second person. If the reason that the testator changed the will was because he knew that the one person owed the other person money, that can show the testator‘s intent to save the gift to that person instead of the person losing it.

Question 14

If the second will that ends up being invalid gave a reason for revoking the first will that ended up being inaccurate, such as the testator thought the devisee was dead, would dependent relative revocation apply?

Answer 14

Here that would be revocation based on a mistake and clear and convincing evidence shows it was conditioned on an inaccurate basis, so since that condition wasn’t met, the revocation would have no effect.

Question 15

If a testator made a will that left everything to his sisters and he named E as the executor, but then he had a falling out with E, so he tore up the first will and made a second will that was exactly the same but just changed the executor, and then he died before he could sign it, what happens?

Answer 15

Dependent relative revocation could apply because the two wills were exactly the same and the alternative to that would be intestacy, which makes no sense since all the testator wanted to do was change the executor.

Question 16

What is revival?

Answer 16

This is the reinstatement of a previously revoked will. It applies when there are three wills, and a second will that revoked a first will ends up itself getting revoked. Revivals always have two revocations and at least two wills, and the first will must be revoked by a later writing. If the first will is revoked by a physical act, then revival does not apply. This means that the first will is always revoked by a second will [either expressly or by inconsistency]. The only variation is in how the second will was revoked

Question 17

What are the two options to create a revival?

Answer 17

A first will gets revoked by a second will, and then a second will also gets revoked [can be either by a physical act or a third writing].

Question 18

Once a second writing gets revoked either through a physical act or a third writing, what is the question to be answered in order to see if revival applies?

Answer 18

Whether the revocation of the second writing revives the first writing.

Question 19

What is the default for revival?

Answer 19

There is no revival without contrary evidence. This depends on whether the second will is revoked by a physical act or a third writing.

Question 20

If revival doesn’t apply, what might?

Answer 20

Dependent relative revocation, so you should always consider that on essays

Question 21

How does California and the UPC treat revival?

Answer 21

They are the same on this topic

Question 22

In order for revival to apply, what are the ways that the second will can be revoked?

Answer 22

Either by a subsequent third writing or by a subsequent act

Question 23

If a second will is revoked by a subsequent third writing, what is necessary for revival to apply?

Answer 23

The third writing must meet will formalities and it must say some kind of evidence to suggest that will number one should take effect if the third will is not effective. The default is that the first will has no effect unless there is evidence to the contrary in the terms of the third will. The idea is that if there is a third will, its terms are the best evidence of the testator‘s intent.

Question 24

What happens in this scenario?
– will #1: “Car to A, house to B, stocks to C.“
– will #2: “Car to D, house to E, stocks to F.“
– will #3: “Will #2 is revoked.“

What does this mean?

Answer 24

Will #2 is revoked by #3, but it is up to the testator to say in #3 what will happen to #1. If he says “#2 is revoked so that #1 can stand” then #1 gets revived. If he doesn’t say anything to that effect, then #1 is not revived.

Question 25

What happens in the situation?
– Will #1: “Car to A, rest to B.”
– Will #2: “Revoke #1 and leave stereo to A, car to C, rest to B.”
– Will #3: “Revoke #2 to the extent that it replaced #1 and leave CDs to A.”

When the testator dies, his closest relatives are a distant aunt that lives far away. What do you do?

Answer 25

Revival is applied because you can only look to the terms of #3. So the court will probate #1 as modified by #2. A will get the car and the CD collection and B will get the rest.

Question 26

Under revival, if a second will is revoked by a physical act, what happens?

Answer 26

The first will is revoked in whole or in part unless it is evident from the circumstances of the revocation or the testator‘s contemporary declaration that he intended the first will to take effect as executed.

Question 27

What is the default rule for revival if the second will is revoked through a subsequent act?

Answer 27

The default is not to apply revival, so the first one is not brought back into play unless there is additional evidence that this was wanted by the testator. Additional evidence can come from the testator‘s contemporary declaration that he wanted number one to take affect

Question 28

What is the rationale behind not applying revival if the second will is revoked by a subsequent act unless evidence suggests that’s what the testator wanted?

Answer 28

Because there is no third will, there’s no language to tell anyone what the effect of the revocation should be, so you have to look at statements and circumstances of the testator

Question 29

• will #1: “Car to A, house to B, stocks to C.“
  – will #2: “Car to D, house to E, stocks to C.“ And says nothing about the first will, but revokes it by inconsistency, and then later the second will ends up getting torn up, what happens?

Answer 29

The second will was revoked by a physical act, so you have to look at the circumstances and statements of the testator to figure out what to do to see if revival applies. If there is no affirmative evidence that the testator wanted #1 revived, then the testator dies intestate. If there is evidence that he tore up #2 because he got divorced and A, B, or C moved in with him until he died, that shows he likely wanted his original friends to take instead of to die intestate. But if he tore up #2 because D, E, and F swindled him in a pyramid scheme, he likely would prefer to die intestate. But if an independent third-party testified that when he tore up the will he said, “Let’s go back to the way things were under the first will“ that shows that he was tearing up #2 imagining that #1 would revive. It all depends on whether there is evidence to show what the testator wanted.

Question 30

• if a testator wrote will #1 saying: “Car to A, rest to B.”
• then he wrote #2 saying that it revoked #1 and left a stereo to A, car to C, and the rest to B.”
  – then he tore up #2 and died. His closest relatives are a distant aunt that lives far away. Would revival apply?

Answer 30

Yes, because we can look at the circumstances and see that neither will left anything to the relative and the changes in the will were minor. So the testator probably wanted #1 to take effect.