Revocation

Question 1

How can a will be revoked by physical act?

Answer 1

A will is revoked by physical act if:

(1) the testator intended
to revoke the will; AND

(2) the will is burned, torn, destroyed, or canceled by the testator (or someone at his direction and in his presence).

Question 2

What is the common law rule for words of cancellation?

Answer 2

Under the common law, words of cancellation are valid only if they come in PHYSICAL CONTACT with words of the will (i.e. written over).

Question 3

What is the UPC rule for words of cancellation?

Answer 3

Words of cancellation are valid even if they did not physically contact the words of the will.

Question 4

What is the effect of a will with cancellation marks?

Answer 4

Scratch outs give rise to a presumption that the testator intended to revoke the gift.

Question 5

What is the effect of scratching out and typing over top of the scratched out words?

Answer 5

This would give rise to a presumption that the testator intended to revoke and substitute; however, if the substitution is not signed, witnessed, or in the person’s handwriting (e.g. it’s typed), it won’t be effective.

Question 6

What is the common law revival rule?

Answer 6

At common law, an earlier will was automatically revived if a subsequent will was revoked.

Question 7

What is the modern law revival rule?

Answer 7

Most states permit revival of revoked wills only under certain circumstances.

1) Revoked by physical act and there is INTENT to revive.

OR

2) If revoked by a later instrument, it can be revived if the testator republishes the will with a valid will or codicil.

Question 8

What is the UPC revival rule?

Answer 8

A partially revoked will is automatically revived unless the testator did not intend their revival.