Revocation Flashcards
Revocation by physical act requires (2) . . .
Intent to revoke
Physical act
In 2011, T properly executed a will in duplicate giving all property to her children. In 2013, she wrote VOIT on one of the copies and drew many vertical lines across it. She did nothing to the other copy. Will revoked? Why or why not?
Yes, revoked
A valid act of revocation on one will cancels all copies of that will.
When revoking by physical act, what must be true of the physical act?
It must cross some of the language of the will being revoked.
If a will is in T’s possession from the time of execution until death and is found in a mutiliated condition after T’s death, it is presumed . . .
T did the mutiliating with an intent to revoke.
If a will is last seen in T’s possession and control and is not found after his death, it is presumed that . . .
T destroyed with an intent to revoke.
How can the presumption of possession/control/revocation be overcome when T has died?
Show that someone else had access to the will.
T calls his attorney and orders him to destroy T’s will. The order is never carried out. Will revoked? Why or why not?
No. Intent, but no physical act.
T calls his attorney and orders him to destroy T’s will. The attorney destroys it while T is on the phone. Will revoked? Why or why not?
No. Revocation by another person must be done at T’s direction, is his presence, and in the presence of two witnesses.
T calls his attorney and orders him to destroy T’s will. The attorney destroys it while T is on the phone. Since T wasn’t there however the will is not revoked. How can is till be probated given the fact it has been destroyed? Doctrine + proof
Lost Will Doctrine
Must prove the documents contents by clear and convincing proof.
What are the requirements for revocation by physical act carried out by another person?
Revocation by another person must be done at T’s direction, is his presence, and in the presence of two witnesses.
T’s 2007 will leaves Blackacre to X, her diamond ring to Y, and residue to Z. T’s 2010 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke the 2007 will. Who takes what? Why
M: Ring / Y: $5k / X: Blackacre / Z: Residue
Where a codicil (or second will) makes no reference to a will but contains slightly inconsistent terms, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls.
A revocation of a will has what effect on all codicils made thereto?
Revocation
A revocation of a codicil to a will has what effect on the subject will?
None
T devises his entire estate to “my wife, Sheila, if she survives me; if not, in trust to my children.” Sheila is named executor if able; otherwise X is to serve. Two years later, T and Sheila divorce. T dies a year later without revoking the will.
T is survived by Sheila, their two kids, and X. Who takes what? Who serves as executor? Why?
Entire estate to kids
X is executor
Unless the will shows it was intended to survive divorce, divorce revokes all provisions in favor of an ex-spouse in the will, revocable trust, or life insurance policy.
T devises his entire estate to “my wife, Sheila, if she survives me; if not, in trust to my children.” Sheila is named executor if able; otherwise X is to serve. Two years later, T and Sheila divorce. T doesn’t revoked the will. T and Sheila remarry. T dies.
T is survived by Sheila, their two kids, and X. Who takes what? Who serves as executor? Why?
Estate to Sheila
Sheila is executor.
Divorced spouse comes back in if the instrument is not replaced.
T devises his entire estate to “my wife, Sheila, if she survives me; if not, in trust to my children.” Sheila is named executor if able; otherwise X is to serve. Two years later, T and Sheila separate but do not divorce. T doesn’t revoked the will. T dies.
T is survived by Sheila, their two kids, and X. Who takes what? Who serves as executor? Why?
Estate to Sheila
Sheila is executor.
Mere separation does not affect the document.
T types a will that gives “$10,000 to X.” Thereafter, T crosses out $10,000 and replaces it with $15,000.
Has the $10k bequest been revoked? Can the interlineation be given effect? Why or why not?
Yes
No. Post-execution changes are not effective UNLESS the will is either re-executed or republished by codicil after the changes are made.
What is Dependent Relative Revocation? What must the court be convinced of?
DDR allows us to disregard a revocation based on, induced by, or premised on a mistake of fact or law IF the court is satisfied that “but for” the mistake of fact/law, T would not have made the revocation.
T types a will that gives “$10,000 to X.” Thereafter, T crosses out $10,000 and replaces it with $15,000. This revocation is based on a mistake of law. Can DDR be used to give X any money? If so, how much?
Yes, $10k
T types a will that gives “$10,000 to X.” Thereafter, T crosses out $10,000 and replaces it with $2,000. This revocation is based on a mistake of law. Can DDR be used to give X any money? If so, how much?
No. Since the gift is smaller, no DDR.
In 2005, T executes WILL-1 which gives his entire estate “in trust to pay the income to my grandson G until he turns 30, at which time he gets the principal.” In 2010, T executes a new WILL-2 revoking all prior wills and giving G the residuary estate outright. WILL-1 is not destroyed.
In 2012, T decides that he wants to go back to WILL-1. He destroys WILL-2 with the intent of reviving WILL-1 (in front of his housekeeper). T dies. He is survived by G and his granddaughter H, whom he hates.
Who takes what? Why?
G will take the estate in trust thanks to DDR.
Both wills are revoked, since T never re-executed or reinstated WILL-1. Without DDR, H would get a share. However, DDR steps in to help approximate T’s intent based on the terms of WILL-1. Remember, H is detested. It wouldn’t be right to give her a share based on a mistake of law.
