revocation Flashcards
revocation
A person w/testamentary capacity may revoke his will or codicil at any time prior to death.
methods of revocation
- operation of law
- subsequent instrument
- physical act
sufficiency of revocation
An act of revocation on 1 executed copy revokes all executed copies
revocation by physical act
Revocation by physical act requires i) intent to revoke and ii) physical act of burning, tearing, cancelling, obliterating a material portion of the will.
May be performed by another IF at T’s direction and in T’s presence.
revocation presumptions
- If will was in T’s possession from time of execution until death and was found mutilated after T’s death, it is rebuttably presumed that T mutilated w/intent to revoke.
- If will was last seen in T’s possession and control and not found after T’s death, it is rebuttably presumed that T destroyed it w/intent to revoke.
Extrinsic evidence is admissible to overcome rebuttable presumption.
Lost wills statute
In most states, a lost will requires formal proceeding where proponents have the burden of proving i) valid execution, ii) the cause of nonproduction (proof it was not revoked), and iii) the contents of the will
Contents usually proved by testimony of 2 witnesses or production of carbon/photocopy of the will.
Atty liability for negligence
Atty’s duty runs not only to the client but also to the intended beneficiaries. They can sue for negligence.
SoL begins to run on the date of decedent’s death (not the date the will was executed).
effect of codicil with inconsistent provisions with underlying will
Where codicil makes no reference to will but contains slightly inconsistent provisions, the will and codicil are read together to the extent possible. To the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
effect of two wills and the 2nd doesn’t not revoke the first
If 2nd has no residuary clause - presumptively a codicil to the first. An implied revocation ONLY to the extent of the inconsistency.
If 2nd has residuary clause - Revokes 1st will IN ENTIRELY by inconsistency
Revocation of will v revocation of codicil
Revocation of a will revokes all codicils, BUT
revocation of a codicil does NOT revoke the will.
effect of divorce on will
Divorce following a will revokes all provisions in favor of ex-spouse.
Construe the will as though ex-spouse predeceased T.
If they remarry, she comes back into the will.
effect of separation but not divorce on will
Mere separation does not affect spouse’s rights under the will.
Separation agreement complete w/property settlement will be treated as waiver under will.
interlineation
Lining through a dollar amount in a will to change the amount.
Dependent Relative Revocation (DRR)
DRR allows us to disregard a revocation when T revokes his will under the mistaken belief that another disposition of his property would be effective, and but for the mistake, T never would have made the revocation.
application of DRR
- Disregard the revocation
- Because it was based on mistake of law or fact
- Provided the court thinks T would not have revoked the bequest but for the mistake.
- Compare the consequence of undoing the revocation.
- DRR is applied only if it comes closer to what T tried but failed to do than an intestate distribution. (T never gets what he wants)
5a. If the change is a bigger gift, the old gift comes back in DRR.
5b. If the change is a smaller gift, DRR is not applied and the gift remains revoked.
