REVOCATION Flashcards
Revocation Generally
A living will can be revoked at any time by obliterating, burning, tearing, or destroying the will, written revocation, OR oral expression of intent to revoke the will.
Operation of law: Divorce
A final disposition of annulment or divorce is deemed to revoke any fiduciary capacity or dispositions made to the former spouse in the will and the dispositions are treated as if the former spouse predeceased the testator. (Legal separation does NOT count!)
Revocation by Physical Act
A will may be revoked in whole or in part by a physical act when it is
(1) burned, torn, cancelled, obliterated, or other destruction to the will itself;
(2) the testator must have the simultaneous intent to revoke the will; AND
(3) it must be done by the testator
OR another person in the testator’s presence and at his direction, with at least two witnesses (FOUR PEOPLE TOTAL). There is a rebuttable presumption that the will was revoked by physical act when the will is found in a mutilated condition and it was last seen in the testator’s possession. If a will is last seen in the testator’s possession, but cannot be located after death, presumed revoked.
Revocation by Implication
A will may be revoked by implication. When a testator executes a second will that does not expressly revoke an earlier will, the two wills will be read together. The second will is treated as a codicil to the earlier will and revokes the first will only to the extent that its provisions are inconsistent. However, if the wills are so inconsistent that they cannot be read together, the first will is revoked by implication.
Revival of a Revoked Will
{1. Re-exec OR 2. Codicil} The revocation of a later will DOES NOT revive a prior will UNLESS the testator intended the prior will to be revived. The first will can only be revived by either re-execution of the prior will (signed, 2 witnesses) OR by the doctrine of republication by codicil.
The Doctrine of Dependent Relative Revocation.
DRR permits a court to disregard a revocation if it determines:
(1) the act of revocation was made based on a mistake of law or fact, and but-for the mistake, the revocation would not have occurred, AND
(2) the disposition results from applying DRR must come closer to effectuating what the testator attempted but failed to
Revocation by Codicil.
If a T executed a will, then executed a codicil, and subsequently revoked the codicil, there is a rebuttable presumption that the T intended to revoke only the codicil. If a T executed a will, then executed a codicil, and subsequently revokes the will, there is a rebuttable presumption that the T intended to revoke both the will and codicil.
Lost Will Statute
Applicable in two situations: DRR and Truly lost wills.
The lost will proponent must prove that the lost or later will was duly executed; the lost or later will was not revoked; must overcome the presumption of revocation that arises from the wills non-production OR prove that the revocation should be disregarded under DRR; the wills provisions are clearly and distinctly proven by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.
Pretermitted Children
When a testator fails to provide in his will for any child born or adopted after execution of the will, the child takes an intestate share, which usually comes from the residue, UNLESS:
(i) it appears from the will that the omission was intentional,
(ii) T has other children at the time will was executed and devised substantially all of her estate to the other parent; or
(iii) the testator provided for the omitted child by a transfer outside of the will in lieu of testamentary gift.
