Revocation Flashcards
III. Methods
IIII.(A)(1) Subsequent Instrument
> A later will that usually includes a residuary clause or codicil if there is no residuary clause, but an earlier document has one, that partially or completely revokes a prior will, can be express or implied by the terms of the subsequent instrument
- Oral revocations are NOT valid.
> Inconsistencies: the later document controls and revokes the prior inconsistencies.
III. (A)(2) Physical Destruction
> Physical Act: burning, tearing, canceling, obliterating, or destroying a material portion of the will, coupled with simultaneous intent to revoke, some defacement of language is required, crossing out or writing null and void is sufficient.
> Third party: can revoke on behalf of T or at T’s direction and in T’s presence
> Divorce( not separation) or dissolution: revokes all will provisions in favor of the former spouse or DP unless it can be shown that T intended for the will to survive
> Partial revocation: sufficient to revoke a provision of a will, but a new provision will not be given effect until the will is re-executed or republished
> Alteration: T may be able to decrease a gift as long as the alteration is made to the existing language of the will, not through the addition of new language.
- T cannot increase a gift by adding new text without a codicil.
> Holographic Wills: can be altered/revoked in whole or in part by holographic changes and without a new signature; can also be revoked by formal wills
III.(B) Lost Wills
> Rebuttable presumption of revocation: If a will once known to exists cannot be found upon T’s death, the burden is on the proponent of the existence of a will to prove the will’s existence by clear and convincing evidence.
> Duplicate originals can be admitted to probate: copies ay only be used as proof of testamentary intent for a lost or missing will.
> Absence of intent to destroy: even if there is proof that a will has been destroyed, if there is no evidence that T intended to revoke it, then the will can still be probated if there is clear and convincing evidence of T’s lack of intent to revoke and of the will’s contents.
III. (C) Revocation of Codicil
revives will
III. D Revival
> By Testator Intent: revocation of a will/codicil that revokes another will revives the original will if there is proof that T intended to revive the original will(extrinsic evidence more likely to be admissible if revocation was by physical act)
> Dependent Relative Revocation: A T who revokes a will or portion of the will by subsequent instrument or physical act, and is under a mistaken belief of law/fact and who would not have revoked but for such belief, has not effectively revoked his will.
