revocation Flashcards
general rule of revocation
A person who has testamentary capacity may revoke their will at any time prior to their death.
Even a testator who has validly contracted not to revoke a will may do so, but there may be an action for breach of contract against the testator’s estate that results in the imposition of a constructive trust.
methods by which to revoke a validly executed will
(1) operation of law
– marriage
– divorce
– pretermitted children
(2) subsequent written instrument
(3) physical act
methods of revocation by operation of law
(1) marriage
– if a person executes a will, not mentioning a spouse [bc they are not married] and then gets married, the surviving spouse will take an intestate share of the estate UNLESS it appears from the will or prenup that the omission was intentional
— gifts are abated to the extent necessary to make up share
— gifts given during life and nonprobate transfers have no effect on right to intestate share
(2) divorce or annulment [not separation]
– revokes all provisions in favor of former spouse [including appointments]
– revokes right of survivorship to nonprobate transfers [become T in common]
– but if they remarry, all provisions are revived [includes nonprobate transfers]
(3) pretermitted [omitted] children
– applies only to children born or adopted after the will was executed
— gifts made during life have no effect
— the share of pretermitted child is first taken from any portion of the estate not disposed of by will, and then next taken pro rata from all beneficiaries under the will
HOW MUCH DOES AN OMITTED CHILD TAKE?
(a) if T had no other children when will was executed = intestate share
(b) if T had other children when will was executed = the lesser of
[i] an amount equal to the LARGEST bequest made to any of the other testator’s children
OR
[ii] an intestate share
** any amount allocated to a minor child as a pretermitted child, or so much as remains unexpended, passes to the persons named in the will if the child dies under the age of 18, unmarried, and without issue.
if pretermitted child dies before hitting 18, unmarried and without issue, what happens to their share
their share remains unexpended in their support
education reverts to the person to whom it was given by the will
?
revocation by written instrument
WRITTEN INSTRUMENTS
– subsequently written will
– codicil
– other writings that are executed with same formalities of will
**note that dispensing power statute applies to instruments that revoke a will
METHOD OF REVOCATION
– express
– implied by inconsistency [revocation to the extent of inconsistent provisions]
requirements for revocation by physical act
(1) sufficient act [BC TOD]
– burning
– Cancelling, cutting
– tearing
– obliterating
– destroying
the document or testator’s signature
(2) with intent to revoke that is simultaneous with the act
– extrinsic evidence admissible to show whether testator intended partial or full revocation if only part of the will was destroyed
(3) performed by the testator or proxy
PRESUMPTIONS
– If will cannot be found after T’s death, and was last in T’s possession or control = presumed revoked [overcome with clear and convincing evidence]
– if will is found after death in mutilated condition = presumption T intended to revoke [rebut with clear and convincing evidence]
effect of revoked will [by physical act] on other testamentary instruments
(1) revocation of a will revokes all codicils to that will
(2) revocation of a codicil does not revoke the original will
(3) if you have a copy of a will and the original, the revocation of either one will be effective as to both
(4) destruction of an unexecuted copy of a will is not effective
extent to which you can introduce a lost will or a suppressed will
in VA, you may probate a lost or destroyed will, but you must prove by clear and convincing evidence
(1) will was properly executed
(2) will was lost or destroyed
(3) will’s contents
how to revive revoked will
re-exeucte it with full testamentary formalities
cannot revive by destroying the second instrument
**note: dispensing power may be invoked if there is clear and convincing evidence that T intended a subsequent document or writing to be a revival of formerly revoked will
effect of revocation of codicil
a revocation of a codicil to a will does NOT revoke the will
the will provisions changed by the codicil are reinstated as though the codicil had never been executed
