Revocation

Question 1

What is the best way to revoke a will?

Answer 1

Expressly (wipes the slate clean for newer wills); however there are still other methods

Question 2

Revocation by physical act requires:

Answer 2

i) intent to revoke;

(ii) physical act: Typical statute refers to “burned, torn, canceled, obliterated, or destroyed.”

Question 3

In 2009, T properly executed a will in duplicate giving all property to her children. In 2011 she wrote “VOID” on one of the copies of the 2009 will and drew many vertical lines across front of the one-page document. Will revoked?

Answer 3

An act of revocation on one executed copy acts on all executed copies, yes cancelled

Question 4

Is the will cancelled if “VOID” written on back of will.

Answer 4

A. Most states: No revocation. Cancellations must: Cross some of the language of the will, dont have to cross all of it, if none than no cancellation
B. UPC: Cancelled

Question 5

What if “VOID” written on face of Xerox copy.

Answer 5

No good in any state

Question 6

Presumptions:

Answer 6

A. Will in T’s possession from time of execution until death and found in mutilated condition after T’s death. Presumption: T did mutilating with intent to revoke.
B. Will last seen in T’s possession and control not found after T’s death. Reason it can’t be found is that T destroyed it with intent to revoke.
*These are the starting points, presumptions are rebuttable

Question 7

T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The order is never carried out. Will revoked?

Answer 7

Absolutely not: Intent + Act - Intent is met but there is no act performed, intent alone is not enough

Question 8

T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The order is carried out. Will revoked?

Answer 8

By proxy must be:
1. By T’s direction and 2. In T’s presence
In these facts the atty is across town and not in T’s presence

Question 9

T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The order is carried out. Will is not revoked and now there is no will, how could it be probated given the fact that it has been destroyed?

Answer 9

By satisfying “lost wills” statute. In most states, lost will requires formal proceeding where proponents have burden of proving the contents of the lost will. Copy and one witness or other “clear and convincing proof.”
BONUS POINTS - If atty screws it up than: Attys can be sued in negligence for messing up someones will - In the essay mention this, and move on, do not go into depth. Lucas v. Hamm

Question 10

What is a “codicil”

Answer 10

An amendment to a will

Question 11

T’s 2005 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s 2008 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?

Answer 11

Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will. Result on above facts:
M = Ring
Y = Ring revoked by inconsistency, but gets $5K
X = Blackacre
Z = Residue

Question 12

When there are 2 wills which will controls?

Answer 12

If the second does not in terms revoke the first:
-If the second will has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only to the extent of the inconsistency.
-If the second will has a residuary clause then it revokes the first will in its entirety, by inonsistency, and go only by the terms of the second will
To me: I think this is the case because all residue is left to someone and therefore that would logically revoke those items assigned in the first will

Question 13

What is the rule on revocation of wills and codicils

Answer 13

Revocation of the will destroys the codicils, even when codicils not “expressly” destroyed, HOWEVER, if the codicils are destroyed with no mention of the will the codicils are destroyed but the will remains intact

Question 14

What is the rule when spouses divorce?

Answer 14

i. UPC and Most States: Divorce following a will revokes all provisions of the ex-spouse; construe the will as if ex-spouse were dead (*Note that separation is not enough, the spouses need to be legally divorced)
ii. If the same spouses remarry than the previously divorced spouse reemerges in the will

Question 15

What is the exception for when spouses merely separate?

Answer 15

Exception: Separation with complete property settlement: That agreement will be treated as a waiver by ex-spouse of the place in the will (or rights given by the will) again here we treat ex-spouse as dead

Question 16

T’s typewritten will made a bequest of $10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure $10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. Has the $10,000 bequest to X been revoked?

Answer 16

Yes, physical act (can line item veto) - Cancelled, all depends on intent

Question 17

T’s typewritten will made a bequest of $10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure $10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. Can the interlineation (i.e., the $15,000 bequest to X) be given effect?

Answer 17

Rule: No (this is the starting point); UNLESS:

i. After the change T re-executes the will, or;
ii. Republishes the will by codicil - That ocurrs when will is changed and separate paper write out intent and excute

Question 18

What is Dependent Relative Revocation [DRR] Doctrine?

Answer 18

DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. 3 Parts:

1. Disregard a revocation
2. Because it was based on a mistake of law
3. Provided the court thinks T would not have revoked the bequest “but for” the mistake.

Question 19

T’s typewritten will made a bequest of $10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure $10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. Should Dependent Relative Revocation [DRR] be applied to reinstate the original $10,000 bequest?

Answer 19

Yes - Meets the 3 part test

1. Disregard a revocation (the cancellation of the $10,000 bequest).
2. Because it was based on a mistake of law (that the interlineation would be effective).
3. Provided the court thinks T would not have revoked the $10,000 bequest but for the mistake.
   * Note - Line through $10K and write $1K, they leave X with nothing,
   - If the gift is larger, discuss DRR and apply
   - If smaller discuss DRR and decline it

Question 20

In 2003, T executes WILL-1 which devises his residuary estate “in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G.” In 2008, T executes a new will, WILL-2, “hereby revoking all wills heretofore made by me.” WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2010 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, “You know, I think the property should be held in trust for G after all.” With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2012. He is survived by G and by his daughter, S, whom he detests. Who takes what?

1. Has WILL-1 been revoked?
2. Has WILL-2 been revoked?
3. Revival: Did revocation of WILL-2 “revive” WILL-1?

Answer 20

1. Yes, in 2009 at the execution of will 2
2. Yes, it was destroyed with intent to destroy - Physical act
3. (i) - Most States: Not automatically, will 1 revived if 3 tests are met:
   –1. Will 1 still exists (in hypo it does, it was not destroyed), and;
   –2. Show that T wanted it revived (intent), and;
   –3. Will 2 must have been revoked by physical act
   (ii) - Rest of the States and the UPC - No - The only way to get will 1 back is to reexecute or republish by codicile, cannot revive it by reviving the insrument that revoked it-
   The question is Can we get will 2 back by DRR (based on mistake that Will 1 was coming back) The important thing is the “but for” test,
   –1. If not the will passes by intestacy and despised daughter gets - we dont want this
   –2. If will 2 than G gets property outright and that was not the stated intent
   -Is will 2 better than no will at all - Yes apply DRR (bring the right will back, Will 2)
   Will 2 has been destroyed, use the lost will statute to bring it back, **DRR never gives us what the T wants, just the next best thing

Question 21

What is the general rule with regards to a codicil to the will?

Answer 21

GR: The codicil and the will are read together where consistent, in the event of any inconsistencies the later document controls (the later doc. squeezes out other provisions, harmonize docs to the extent possible) - One bar trick is that the examiners will call the 2nd document a will instead of a codicil, remember the general rule, harmonize to the extent possible and the 2nd doc. controls inconsistencies (Note that if the 2nd will has a residuary clause it takes precedent over the 1st will, if there is no residuary clause it is merely a codicil)

Question 22

What is the difference between a 2nd will and a codicil?

Answer 22

The existence of a residuary clause - If the 2nd will has a residuary clause it revokes the first will in its entirety, by inonsistency, and go only by the terms of the second will, if there is no residuary clause it is merely a codicil (there is an implied revocation but only to the extent of any inconsistency)