Revocation Flashcards
Revocation by Operation of Law types
- marriage after will
- divorce/annulment after will
- children after will
Marriage after will
if married after execution of Will & spouse survives testator, spouse is pretermitted and takes an intestate share of T’s estate
UNLESS:
1. it is waived in a valid pre or post nup;
2. the will includes a gift to the spouse in contemplation of marriage; or
3. the will discloses an intention not to make a provision for the spouse
Divorce/Annulment after will
Revokes all provisions in favor of former spouse; spouse is treated as if they predeceased
Divorce / Annulment and Rev Trusts
Rev trust provisions affecting the spouse remain valid if:
1. executed after the divorce;
2. invalidation is contrary to the specific intent of the trust; or
3. the dissolution of marriage judgment expressly provides otherwise
Children After Will
child born or adopted after will is executed = pretermitted and is entitled to a share in value to what he could have received if Testator died intestate
Revocation by Subsequent Instrument
all or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.
- if the subsequent instrument does not expressly revoke the earlier will, the 2 are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions
Revocation by Physical Act
can be revoked by burning, tearing, canceling, defacing obliterating, or destroying it with the intent, and for the purpose of revocation
- physical act must actually touch the text
- can only fully revoke - no partial
- may be performed by another if done at the testator’s direction and presence
Presumptions as to Revocation
if a will last seen in T’s possession or under his control cannot be found after his death or is found in a mutilated condition, a rebuttable presumption arises that T revoked it
Duplicate Wills & Revocation
an act of revocation done to either copy revokes the will
Revocation of Wills v Codicils
Revoking a will = revokes all codicils
Revoking a codicial does NOT revoke the entire will
Revival?
FLORIDA IS A NO REVIVAL STATE meaning you cannot revive a revoked will.
Lost or Destroyed Wills
if a will is lost or destroyed (and the presumption that T revoked it is overcome, the specific contents of the will must be proved by the testimony of 2 disinterested witnesses or by 1 disinterested witness & a photocopy or carbon copy of the will
Dependent Relative Revocation (DRR) doctrine
applies when T revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will
- if the other disposition fails, the revocation also fails and the will remains in force
- DRR applied only if it comes closer to what the testator tried to do, than would an intestate distribution
Residual Estate
Property of estate that was not devised by the will
- has to bre property that can be devised
- if it wasn’t devised, passes through intestacy
